Filed 2/20/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re 

 ARTHUR ESPINDOLA RAMIREZ,

 On Habeas Corpus.

F075897

(Madera Super. Ct. No. 13251)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Kyle Gee, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. 

Christoffersen, Janet E. Neeley, Michael A. Cozoneri and Barton Bowers, Deputy 

Attorneys General, for Respondent.

-ooOooArthur Espindola Ramirez (petitioner) seeks to have his felony-murder special 

circumstance vacated based on California Supreme Court authorities decided after his 

convictions became final. We conclude he is entitled to that relief.
2.

FACTS AND PROCEDURAL HISTORY1

“I. The Prosecution.

“Eustacio [surname omitted] testified that he was 13 years old in 

January of 1996. He lived with his parents and [petitioner], who was then 

aged 19. Eustacio belonged to a ‘Sureno’ (southern California) street gang. 

His best friend was 16-year-old Josh [surname omitted]. On or about 

January 14, 1996, the [petitioner], Eustacio and Josh searched through an 

abandoned house and trailer. [Petitioner] found a sock in which a .25-

caliber handgun (hereafter the .25) and a .32-caliber handgun (hereafter the 

.32) were secreted. The guns were given to a friend of Eustacio’s father to 

be cleaned.

“The following day, the three went shopping with Eustacio’s mother. 

At Eustacio’s request, she purchased ammunition for the weapons. 

Eustacio took the ammunition from his mother and [petitioner] put it under 

one of the beds in the room Eustacio shared with [petitioner]. Later, 

[petitioner] retrieved the cleaned guns. While [petitioner] looked on, 

Eustacio loaded the .32 and Josh loaded the .25. Now armed, the three 

began walking around the neighborhood. They stopped at a couple of 

shacks where [petitioner] and Eustacio fired the .25. They went into a fig 

orchard and all three shot the .32 at the trees; Eustacio also shot the .25. 

They returned home and Eustacio hid the weapons under his bed.

“Early in the evening of January 17, 1996, the three companions 

decided to go to a grocery store to buy food for a barbecue. To protect 

themselves from members of rival ‘Nortenos’ (northern California) street 

gangs, Eustacio put the loaded .32 in his waistband; Josh carried the loaded 

.25. They told [petitioner] they were armed before they left the house. 

They rode their bicycles to a grocery store on Lake Street, but did not buy 

anything. They decided to go to Eustacio’s sister’s house. On the way they 

encountered two friends, Omar and Bart. With [petitioner] standing 

 

1 The return includes respondent’s request that we take judicial notice of our records in 

cases Nos. F029659 (People v. Ramirez), F060133 (In re Ramirez), and F073246 (In re 

Ramirez). Respondent has failed to file a separate motion and proposed order as required by 

California Rules of Court, rules 8.252(a) and 8.386(e). Because petitioner expressly states he 

has no objection, however, and because we cannot address the merits of the instant petition 

without reference to petitioner’s prior appeal and petitions, respondent’s request for judicial 

notice is granted.

We take our statement of facts from this court’s nonpublished opinion in People v.

Ramirez (June 18, 1999, F029659).
3.

nearby, Eustacio and Josh showed them the handguns. Omar then 

displayed his own weapon. After Omar and Bart left, the three rode their 

bicycles onto Kennedy Street. A car pulled over and Candido [surname 

omitted], a friend of theirs ‘from the juvenile hall board,’ exited the vehicle. 

With [petitioner] standing next to them, Eustacio and Josh showed Candido 

their weapons. Candido said to them, ‘ “If you guys want, let’s go 

jacking.” ’ [Petitioner] either replied, ‘ “Do whatever you guys want,” ’ or 

‘whatever we want to do.’ Josh said ‘ “Let’s go for it.” ’ Eustacio initially 

refused but eventually agreed to participate.

“The four went to Candido’s house to get a shotgun. Candido went 

inside the house for five to ten minutes but, because his mother was home, 

came back outside without the weapon. They left Candido’s house and 

rode down Lake Street, searching for a person to rob. Candido was riding 

Eustacio’s bicycle; Eustacio was perched on the handlebars of [petitioner’s] 

bicycle. Later, Eustacio traded places with Josh who then sat on the 

handlebars of [petitioner’s] bicycle. They stopped at a gas station where 

Candido gave Eustacio a ‘stun gun,’ and took the .32 from him. 

[Petitioner] was standing beside Eustacio when he gave the handgun to 

Candido.

“Eventually, the four saw a sign for Skeeko’s Bar. Candido said to 

the others, ‘ “That’s it right there. That’s the place.” ’ They rode across the 

street from the bar, stopped and waited. A short time later, a truck pulled 

into the lot. Candido said, ‘ “That’s the car. That’s it.” ’ He gave his 

bicycle to [petitioner] to hold and said to Eustacio, ‘ “Wait here.” ’ 

Candido and Josh jogged into the parking lot toward the truck. Eustacio 

heard keys locking a door and then heard either Candido or Josh say, 

‘ “Give me your money.” ’ He then heard a ‘thump, somebody hit 

something.’ Immediately thereafter he heard four or five gunshots, 

followed by three or four more shots. Eustacio moved closer to the truck; 

[petitioner] was behind him holding Candido’s bicycle. They were met by 

Candido and Josh. Eustacio asked Candido what had happened. Candido 

replied that they were to ‘get out of here.’ Josh climbed onto the 

handlebars of [petitioner’s] bicycle and the four rode off. Candido looked 

back and saw someone lying on the ground. They were soon stopped by a 

police officer. It appeared to Eustacio that Josh had thrown something into 

a nearby field. [¶] ... [¶]

“Madera City Police Officer Leon George testified that he was 

dispatched to Skeeko’s Bar at 8:29 p.m. During a search of the outlying 

area, he stopped [petitioner] and his companions. Officer George recovered 

the .32 from Candido during a pat search. There were four spent shells and 
4.

two live rounds in the weapon’s chamber. He searched a nearby field and 

found the .25 lying on the ground. The weapon had one spent cartridge 

jammed in the chamber.

“[Patrick Shawn] Neal died in Skeeko’s parking lot after having 

suffered six gunshot wounds to the head, chest, right hip, upper right arm 

and left finger. Four .32-caliber bullets and two .25-caliber bullets were 

removed from the victim’s body. These bullets were fired from the seized 

.32 and .25.

“Madera City Police Detective Fabian Benabente testified that he 

interviewed all four suspects on the night of their arrest. The tape of his 

interview with [petitioner] was admitted as evidence and played for the 

jury. [Petitioner] told the officer that the four of them went to Skeeko’s 

because ‘we just wanted to jack somebody to get some money.’ The 

decision to ‘jack somebody’ was made by ‘[e]verybody.’ Josh rode on the 

handlebars of [petitioner’s] bicycle. [Petitioner] knew that Josh was armed 

with the .25 and Candido had the .32. The guns had been found in an 

abandoned house and Eustacio’s mother had purchased ammunition for the 

weapons. They waited for someone to approach. He and Eustacio waited 

on the street while Josh and Candido walked toward the truck. He heard 

Josh say, ‘Give me your money,’ and then the sound of approximately six 

gunshots. He did not see anything because ‘I just didn’t, didn’t want to 

look. Cause’ I knew they were just gonna’ take his money and then just 

leave real fast. I didn’t want him to see my face.’ Josh and Candido ran 

back to them. Josh told them that the victim had punched him. He had shot 

his gun but did not know if he had hit the victim. They rode off. 

[Petitioner] saw Josh throw a gun onto the grass when they were stopped a 

short time later.

“II. The Defense. [¶] ... [¶]

“In sum, [petitioner] testified that he did not know what happened to 

the guns found in the sock and he did not fire them, he was not involved in 

the purchase of ammunition, no one discussed or displayed any firearms on 

the evening of the murder, he was not asked to participate in a robbery, he 

did not know what Candido or Josh were going to do at Skeeko’s Bar, and 

he did not go there with the intent to commit any crime.” (People v.

Ramirez, supra, F029659, fns. omitted.)
5.

Petitioner was charged with murder committed while he was an accomplice in the 

attempted commission of robbery (Pen. Code,2 §§ 187, subd. (a), 190.2, subd. (a)(17) 

[count 1]), attempted robbery (§§ 211, 664 [count 2]), and conspiracy to commit robbery 

(§§ 182, subd. (a)(1), 211 [count 3]). The jury was instructed, concerning the robberymurder special circumstance, that with respect to a nonkiller, the special circumstance 

could not be found true unless that person acted with the intent to kill, or with reckless 

indifference to human life and as a major participant.

On February 27, 1997, petitioner was convicted as charged and the specialcircumstance allegation was found to be true. On November 7, 1997, he was sentenced 

to life in prison without the possibility of parole (LWOP) on count 1, plus five years on 

count 3. Sentence on count 2 was stayed pursuant to section 654. Petitioner appealed, 

claiming (insofar as is pertinent) that there was insufficient evidence to sustain the 

finding required for the special circumstance that petitioner acted with reckless 

indifference to human life and as a major participant. On June 18, 1999, we affirmed the 

judgment in its entirety and ordered amendment of the abstract of judgment. (People v.

Ramirez, supra, F029659.) The California Supreme Court denied review on September 

29, 1999, and remittitur issued on October 7, 1999.

On July 9, 2015, the California Supreme Court decided People v. Banks (2015) 61 

Cal.4th 788 (Banks). The issue, as framed by the court, was “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.” (Id. at p. 794.)

Petitioner subsequently filed a petition for writ of habeas corpus in Madera County 

Superior Court, in which (insofar as we are able to ascertain) he asserted Banks rendered 

him ineligible to receive an LWOP sentence. The petition was denied on December 14, 

2015, with the trial court finding petitioner’s conduct amounted to major participation 

 

2 All statutory references are to the Penal Code.
6.

and reckless indifference to human life as required by Banks. On February 23, 2016, 

petitioner filed a petition for writ of habeas corpus in this court (case No. F073246), in 

which he raised the Banks issue. We solicited an informal response, then denied the 

petition on July 26, 2016.

On September 26, 2016, petitioner filed a petition for writ of habeas corpus in the 

California Supreme Court (case No. S237424), in which he again raised the Banks issue. 

On June 28, 2017, after soliciting and receiving an informal response, that court ordered 

the Secretary of the Department of Corrections and Rehabilitation to show cause before 

this court why petitioner is not entitled to the relief requested. We appointed counsel for 

petitioner, and also requested supplemental briefing regarding the effect, if any, of Senate 

Bill No. 1437, (Stats. 2018, ch. 1015, §§ 2, 3, 4, eff. Jan. 1, 2019, amending §§ 188, 189, 

& adding § 1170.95) on petitioner.3

DISCUSSION

I

THE FELONY-MURDER SPECIAL CIRCUMSTANCE

Murder committed in the perpetration of, or attempt to perpetrate, robbery is 

deemed by statute to be first degree murder. (Former § 189, now § 189, subd. (a).)4 

Subdivision (a)(17) of section 190.2 provides for a penalty of death or LWOP for a 

defendant found guilty of first degree murder committed “while the defendant was 

engaged in, or was an accomplice in, the commission of, attempted commission of, ... : 

[¶] (A) Robbery in violation of Section 211 ....” (§ 190.2, former subd. (a)(17)(i), now 

subd. (a)(17)(A).)

 

3 After receiving said briefing, we agree with the parties that we need not address this new 

law in the present proceeding.

4 Unless otherwise specified, the pertinent statutes have remained unchanged since 

petitioner committed his offenses in 1996.
7.

The mere fact a felony enumerated in section 189, subdivision (a) was committed 

and death resulted is, however, insufficient of itself to establish a felony-murder special 

circumstance with respect to a person such as petitioner, who aided and abetted the 

underlying felony but was not the actual killer. Rather, the nonkiller must aid and abet 

the commission of murder in the first degree with the intent to kill (§ 190.2, subd. (c)), or, 

lacking intent to kill, must aid and abet the commission of the felony “with reckless 

indifference to human life and as a major participant ... ” (id., subd. (d)).

Section 190.2, subdivision (d) was enacted in 1990 to bring state law into 

conformity with prevailing Eighth Amendment doctrine, as set out in the United States 

Supreme Court’s decision Tison v. Arizona (1987) 481 U.S. 137 (Tison). (People v.

Estrada (1995) 11 Cal.4th 568, 575 (Estrada); Tapia v. Superior Court (1991) 53 Cal.3d 

282, 298 & fn. 16.)

In Tison, two brothers aided an escape by bringing guns into a prison and arming 

two murderers, one of whom they knew had killed in the course of a previous escape 

attempt. After the breakout, one of the brothers flagged down a passing car, and both 

fully participated in kidnapping and robbing the vehicle’s occupants. Both then stood by 

and watched as those people were killed. The brothers made no attempt to assist the 

victims before, during, or after the shooting, but instead chose to assist the killers in their 

continuing criminal endeavors. (Tison, supra, 481 U.S. at pp. 151–152.) The Supreme 

Court held the brothers could be sentenced to death despite the fact they had not actually 

committed the killings themselves or intended to kill, stating: “[R]eckless disregard for 

human life implicit in knowingly engaging in criminal activities known to carry a grave 

risk of death represents a highly culpable mental state, a mental state that may be taken 

into account in making a capital sentencing judgment when that conduct causes its 

natural, though also not inevitable, lethal result. [¶] The [brothers’] own personal 

involvement in the crimes was not minor, but rather, ... ‘substantial.’ Far from merely 

sitting in a car away from the actual scene of the murders acting as the getaway driver to 
8.

a robbery, each ... was actively involved in every element of the kidnap[p]ing-robbery 

and was physically present during the entire sequence of criminal activity culminating in 

the murder[s] ... and the subsequent flight. The Tisons’ high level of participation in 

these crimes ... implicates them in the resulting deaths.” (Id. at pp. 157–158.)

The Tison court pointed to the defendant in Enmund v. Florida (1982) 458 U.S. 

782 (Enmund) as an example of a nonkiller convicted of murder under the felony-murder 

rule for whom the death penalty was unconstitutionally disproportionate. Enmund was 

the driver of the getaway car in an armed robbery of a dwelling whose occupants were 

killed by Enmund’s accomplices when they resisted. (Id. at pp. 784–785; see Tison, 

supra, 481 U.S. at p. 146.) In deciding the Eighth Amendment to the United States 

Constitution forbids imposition of the death penalty “on one such as Enmund who aids 

and abets a felony in the course of which a murder is committed by others but who does 

not himself kill, attempt to kill, or intend that a killing take place or that lethal force will 

be employed” (Enmund, supra, at p. 797), the high court emphasized that the focus had to 

be on the culpability of Enmund himself, and not on those who committed the robbery 

and shot the victims (id. at p. 798). “Enmund himself did not kill or attempt to kill; and, 

... the record ... does not warrant a finding that Enmund had any intention of 

participating in or facilitating a murder.... [T]hus his culpability is plainly different from 

that of the robbers who killed; yet the State treated them alike and attributed to Enmund 

the culpability of those who killed the [victims]. This was impermissible under the 

Eighth Amendment.” (Ibid.)

In Tison, the United States Supreme Court acknowledged that the Tison brothers 

likewise did not intend to kill, and so they did not “fall within the ‘intent to kill’ category 

of felony murderers for which Enmund” found the death penalty permissible. (Tison, 

supra, 481 U.S. at p. 151.) The court found it “equally clear,” however, that the pair also 

fell outside the category of felony murderers for whom Enmund found the death penalty 

disproportional (Tison, supra, at p. 151): The facts shown by the record “not only 
9.

indicate[d] that the Tison brothers’ participation in the crime was anything but minor; 

they also ... clearly support[ed] a finding that they both subjectively appreciated that 

their acts were likely to result in the taking of innocent life.” (Id. at p. 152.)

The high court observed: “Although we state these two requirements [major 

participation in the felony committed and reckless indifference to human life] separately, 

they often overlap. For example, we do not doubt that there are some felonies as to 

which one could properly conclude that any major participant necessarily exhibits 

reckless indifference to the value of human life. Moreover, even in cases where the fact 

that the defendant was a major participant in a felony did not suffice to establish reckless 

indifference, that fact would still often provide significant support for such a finding.” 

(Tison, supra, 481 U.S. at p. 158, fn. 12.)

In Estrada, supra, 11 Cal.4th 568, the California Supreme Court read Tison to 

“instruct[] that the 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],” and, so ascribed that meaning to the statutory phrase in subdivision (d) 

of section 190.2. (Estrada, supra, at p. 577.) The court concluded “the generally 

accepted meaning of the phrase, ‘reckless indifference to human life,’ in common 

parlance amply conveys to the jury the requirement of a defendant’s subjective awareness 

of the grave risk to human life created by his or her participation in the underlying 

felony.” (Id. at p. 578.)5

In Banks, supra, 61 Cal.4th 788, Matthews was convicted of first degree murder 

with a felony-murder special circumstance based on his having acted as the getaway 

 

5 Although the California Supreme Court determined in Estrada that trial courts have no 

sua sponte duty to explain the phrase “reckless indifference to human life” to the jury (Estrada, 

supra, 11 Cal.4th at p. 581), the written form of CALJIC No. 8.80.1 (1996 rev.) (5th ed. 1988) 

instructed petitioner’s jury that “[a] defendant acts with reckless indifference to human life when 

that defendant knows or is aware that his acts involve a grave risk of death to an innocent human 

being.”
10.

driver for an armed robbery in which Banks and others participated, and in which Banks 

shot and killed one of the robbery victims while escaping. (Id. at pp. 794, 797.) 

Matthews was sentenced to LWOP. (Id. at p. 797.) The Court of Appeal rejected his 

challenge to the sufficiency of the evidence supporting the special-circumstance finding 

and concluded his actions as a getaway driver for the underlying robbery, with 

knowledge death was always a possibility in an armed robbery, were legally sufficient 

under section 190.2, subdivision (d). The California Supreme Court granted review to 

address the “proper construction” of that statute (Banks, supra, at p. 797), and concluded 

the evidence was “insufficient as a matter of law to support the special circumstance,” 

making Matthews “statutorily ineligible” for LWOP (id. at p. 794).

In reaching this conclusion, the state Supreme Court agreed with People v. Proby

(1998) 60 Cal.App.4th 922, 923 (Proby), that the phrase “major participant” does not 

have a specialized or technical meaning. (Banks, supra, 61 Cal.4th at pp. 800–801.)6 It 

observed, however, that “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,” it turned to a close examination of Enmund and Tison. (Banks, supra, 

at p. 801.) It stated:

“The two cases embrace the United States Supreme Court’s longstanding recognition that, in capital cases above all, punishment must 

accord with individual culpability.... 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. [Citations.]

“With respect to the mental aspect of culpability, Tison, and in turn 

section 190.2[, subdivision ](d), look to whether a defendant has 

‘ “knowingly engag[ed] in criminal activities known to carry a grave risk of 

death.” ’ [Citation.] The defendant must be aware of and willingly 

 

6 Proby observed that “[t]he common meaning of ‘major’ includes ‘notable or conspicuous 

in effect or scope’ and ‘one of the larger or more important members or units of a kind or 

group.’ ” (Proby, supra, 60 Cal.App.4th at pp. 933–934.)
11.

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....

“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 [citation] and Enmund

[citation] represent points on a continuum. [Citation.] Somewhere between 

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

Earl Enmund’s, lies the constitutional minimum for death eligibility.... 

[¶] ... [¶]

“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 his 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 inaction play a particular role in the death? What 

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

considerations is necessary, nor is anyone 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’ [citation] was sufficiently significant to be considered ‘major’ 

[citations].

“The People propose we treat as a major participant ... 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 
12.

many nonkillers, death is disproportionate to that individual’s 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[, subdivision ](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. [Citations.] 

Section 190.2, [subdivision ](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 TisonEnmund 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.’ [Citation.] Accordingly, the 

considerations that informed the Supreme Court’s distinctions between 

differing levels of culpability in Tison v. Arizona [citation] should guide 

juries faced with making those same distinctions under section 190.2[, 

subdivision ](d).” (Banks, supra, 61 Cal.4th at pp. 801–804, fn. omitted.)

The state high court concluded the record evidence placed Matthews at the 

Enmund pole of the Tison-Enmund spectrum. (Banks, supra, 61 Cal.4th at p. 805.) 

Because he was “no more than a getaway driver, guilty like Earl Enmund of ‘felony 

murder simpliciter’ [citations] but nothing greater,” he was ineligible for the death 

penalty under Tison and Enmund. (Banks, supra, at p. 805.) Since the evidence was 

insufficient to make him death eligible under those cases, it was also insufficient to 

sustain a true finding as to the special circumstance and make Matthews eligible for 

LWOP under state law. (Ibid.)

The court further found Matthews lacked the mens rea necessary to make him 

legally eligible for a sentence of LWOP. (Banks, supra, 61 Cal.4th at p. 807.) It 

explained:

“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.” ’ [Citation.] There was evidence from which the jury 
13.

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 [the victim] 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.’ 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....

“ ... 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. [Citation.]

“ ... The Supreme Court [in Tison] 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.

[7]

“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 human life.’ [Citation.] They argue each crime 

listed in [former] section 189 [(now § 189, subd. (a))] qualifies and thus 

 

7

In a footnote at this point, the court disapproved People v. Lopez (2011) 198 Cal.App.4th 

1106 to the extent it held knowledge an accomplice was armed can, by itself, establish reckless 

indifference to human life under section 190.2, subdivision (d). The court also disapproved 

People v. Hodgson (2003) 111 Cal.App.4th 566 to the extent it could be read to hold awareness a 

robbery accomplice was armed, without more, establishes the necessary subjective awareness of 

a grave risk of death. (Banks, supra, 61 Cal.4th at p. 809, fn. 8.)
14.

Matthews, because he participated in two such crimes, robbery and 

burglary, has automatically exhibited reckless indifference to human life.

“Section 189[, subdivision (a)] codifies the first degree felonymurder rule [citation]; 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. [Citations.]

“That one may infer the felonies listed in section 189[, 

subdivision (a)] are those the Legislature views as ‘inherently dangerous’ 

[citation] 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 inquires. Section 189[, subdivision (a)] 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 individual defendant’s mental 

state. [Citations.][8]” (Banks, supra, 61 Cal.4th at pp. 807–810, 

fn. omitted.)

In People v. Clark (2016) 63 Cal.4th 522 (Clark), Clark was convicted, inter alia, 

of first degree murder, with robbery-murder and burglary-murder special circumstances 

found true, based on his liability as an aider and abettor to an accomplice’s fatal shooting 

of a victim during an attempt to rob a CompUSA store. There was no evidence Clark 

himself intended to kill the victim. On appeal, Clark claimed the evidence was

 

8

“Tison does not specify those few felonies for which any major participation would 

‘necessarily exhibit[] reckless indifference to the value of human life.’ [Citation.] 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.” (Banks, supra, 61 

Cal.4th at p. 810, fn. 9.)
15.

insufficient to establish that he was a major participant in the CompUSA crimes and that 

he acted with reckless indifference to human life. (Id. at pp. 610–611.)

With respect to the major participant prong, the high court considered the relevant 

factors laid out in Banks, and concluded Clark had a prominent role in planning the 

criminal enterprise that led to the victim’s death; however, there was no evidence about 

his role in supplying the weapon (although an inference could be drawn that use of a 

weapon was part of his plan for the robbery), his awareness of the particular dangers 

posed by the crime, or his awareness of the past experience or conduct of the shooter. 

The court noted that although Clark was in the area during the robbery, he was not in the 

immediate area of the shooting. (Clark, supra, 63 Cal.4th at pp. 613–614.) The court 

recognized there might be some question concerning the amount of culpability that 

should be assessed for a planner of a felony leading to a murder who was not present 

during the immediate circumstances leading to the murder, but concluded it did not need 

to decide whether Clark was a major participant under the circumstances of the case since 

the evidence was insufficient to show he exhibited reckless indifference to human life. 

(Id. at p. 614.)

As to that prong, the state high court examined Tison and Banks, and reiterated 

Banks’s rejection of the argument any defendant involved in a felony enumerated in 

former section 189 (now § 189, subd. (a)) automatically exhibited reckless indifference to 

human life. (Clark, supra, 63 Cal.4th at p. 616; see Banks, supra, 61 Cal.4th at pp. 809–

810.) It further stated:

“Tison held that the necessary mens rea for death eligibility may be 

‘implicit in knowingly engaging in criminal activities known to carry a 

grave risk of death.’ [Citation.] As examples, the high court cited ‘the 

robber who shoots someone in the course of the robbery, utterly indifferent 

to the fact that the desire to rob may have the unintended consequence of 

killing the victim as well as taking the victim’s property,’ and ... ‘the 

person who tortures another not caring whether the victim lives or dies’ as 

two examples of such murderers. [Citation.] Notably, both examples 
16.

involve a defendant who personally killed the victim—not, as in this case, 

Enmund, Tison, or Banks, a vicariously liable defendant who was not the 

actual killer. Nevertheless, these examples provide some indication of the 

high court’s view of ‘reckless indifference,’ namely, that it encompasses a 

willingness to kill (or to assist another in killing) to achieve a distinct aim, 

even if the defendant does not specifically desire that death as the outcome 

of his actions.

“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.’ [Citation.]

“This definition encompasses both subjective and objective 

elements. The subjective element is the defendant’s conscious disregard of 

risks known to him or her.... [R]ecklessness is also determined by an 

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

the actor’s situation.’ [Citation.] ....

“Finally, while the fact that a robbery involves a gun is a factor 

beyond the bare statutory requirements for first degree robbery felony 

murder, this mere fact, on its own and with nothing more presented, is not 

sufficient to support a finding of reckless indifference to human life for the 

felony-murder aider and abettor special circumstance.” (Clark, supra, 63 

Cal.4th at pp. 616–617, fns. omitted.)

To determine whether there was substantial evidence Clark exhibited reckless 

indifference to human life within the meaning of section 190.2, subdivision (d), the 

Supreme Court considered “the specific facts of Clark’s case in light of some of the casespecific factors that this court and other state appellate courts have considered in 

upholding a determination of reckless indifference to human life in cases involving 

nonshooter aiders and abettors to commercial armed robbery felony murders.” (Clark, 

supra, 63 Cal.4th at p. 618.) As in Banks, the court found no one factor was necessary or 

necessarily sufficient. (Clark, supra, at p. 618; see Banks, supra, 61 Cal.4th at p. 803.)
17.

The first consideration was the defendant’s knowledge of weapons and use and 

number of weapons. The court noted that the mere fact of a defendant’s awareness that a 

gun would be used in the felony was insufficient to establish reckless indifference to 

human life, but on the other hand, it was significant in Tison that the brothers brought an 

arsenal of weapons into the prison and guarded the victims. The court also found that a 

defendant’s use of a firearm, even if the defendant did not kill the victim, could be 

significant. (Clark, supra, 63 Cal.4th at p. 618.) In Clark’s case, the evidence showed 

only that there was one gun at the scene of the killing, it was carried by someone other 

than Clark, and it had been loaded with only one bullet. (Id. at p. 619.)

The next factor was the defendant’s physical presence at the scene and 

opportunities to restrain the crime and/or aid the victim. The court stated: “Proximity to 

the murder and the events leading up to it may be particularly significant where, as in 

Tison, the murder is a culmination or a foreseeable result of several intermediate steps, or 

where the participant who personally commits the murder exhibits behavior tending to 

suggest a willingness to use lethal force. In such cases, ‘the defendant’s presence allows 

him to observe his cohorts so that it is fair to conclude that he shared in their actions and 

mental state.... [Moreover,] the defendant’s presence gives him an opportunity to act as 

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

influence, then the defendant is arguably more at fault for the resulting murders.’ ” 

(Clark, supra, 63 Cal.4th at p. 619.) The court cautioned, however, that physical 

presence was not invariably a prerequisite to a finding of reckless indifference. “Where, 

for example, a defendant instructs other members of a criminal gang carrying out 

carjackings at his behest to shoot any resisting victims, he need not be present when his 

subordinates carry out the instruction in order to be found to be recklessly indifferent to 

the lives of the victims.” (Ibid.) In Clark’s case, Clark was waiting across the parking lot 

for a cohort to secure the store, when the cohort shot the victim. There was no evidence 

Clark instructed the shooter to use lethal force, had an opportunity to observe the 
18.

shooter’s response to the victim’s unanticipated appearance, or to intervene to prevent the 

killing. (Ibid.)

The court next examined the duration of the felony. The court explained: “Where 

a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of 

perpetrators for prolonged periods, ‘there is a greater window of opportunity for 

violence’ [citation], possibly culminating in murder. The duration of the interaction 

between victims and perpetrators is therefore one consideration in assessing whether a 

defendant was recklessly indifferent to human life.” (Clark, supra, 63 Cal.4th at p. 620.) 

In Clark’s case, the robbery was planned for after closing time, when most store 

employees would be gone. Although Clark anticipated some employees would be 

present, the plan was to handcuff them in a bathroom, while the robbery itself took place 

elsewhere in the store. Thus, the period of interaction between perpetrators and victims 

was designed to be limited, although, because the robbery was to occur in a public space 

over a substantial duration, it did involve the risk of interlopers, such as the victim, 

happening upon the scene. (Id. at pp. 620–621.)

Another factor was the defendant’s knowledge of a cohort’s likelihood of killing. 

The court stated: “A defendant’s knowledge of factors bearing on a cohort’s likelihood 

of killing are [sic] significant to the analysis of reckless indifference to human life. 

Defendant’s knowledge of such factors may be evident before the felony or may occur 

during the felony.... [¶] ... A defendant’s willingness to engage in an armed robbery 

with individuals known to him to use lethal force may give rise to the inference that the 

defendant disregarded a ‘grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 621.) In 

Clark’s case, no evidence was presented that the shooter was known to have a propensity 

for violence, let alone that Clark was aware of such a propensity. Nor was Clark in a 

position to observe anything in the shooter’s actions just before the killing that would 

have indicated the shooter was likely to engage in lethal violence. (Ibid.)
19.

The final factor considered by the court was the defendant’s efforts to minimize 

the risks of violence during the felony. Clark argued his efforts in this regard should be 

taken into account, as the robbery was undertaken after closing time when most of the 

employees were gone, there were not supposed to be any bullets in the gun, and the gun 

had only been loaded with one bullet. (Clark, supra, 63 Cal.4th at pp. 621–622.) The 

state Supreme Court found this factor relevant but not dispositive, due to “the two-part 

nature of the mens rea analysis for recklessness under Tison and section 190.2, 

subdivision (d).” (Id. at p. 622.) The court explained: “[R]ecklessness ... implicates 

both subjective and objective elements for the offense.... [E]vidence of any effort by

defendant to minimize the risks of violence could possibly be sufficient to rebut a 

conclusion of defendant’s subjective awareness of engaging in activities risky to human 

life. But ... , although 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. Therefore, it would be possible for the defendant to have 

engaged in apparent efforts to minimize the risk of violence but still be determined by the 

jury to have been reckless, given all the circumstances known to defendant surrounding 

the crime.” (Ibid.) Accordingly, the court concluded that a defendant’s good faith but 

unreasonable belief that he or she was not posing a risk to human life did not foreclose a 

determination of reckless indifference to human life. (Ibid.)

Although it ultimately upheld Clark’s death sentence for reasons not pertinent 

here, the California Supreme Court vacated the robbery-murder and burglary-murder 

special-circumstance findings. The court found insufficient evidence to support the 

inference Clark was recklessly indifferent to human life. (Clark, supra, 63 Cal.4th at 

pp. 623–624.)

We turn now to petitioner’s case. “To determine whether the evidence supports a 

special circumstance finding, we must review ‘ “the entire record in the light most 

favorable to the judgment to determine whether it discloses evidence that is reasonable, 
20.

credible, and of solid value such that a reasonable jury could find” ’ the special 

circumstance allegation true ‘ “beyond a reasonable doubt.” ’ ” (People v. Becerrada

(2017) 2 Cal.5th 1009, 1028.)

From the evidence presented at petitioner’s trial, jurors reasonably could have 

inferred petitioner supplied the guns that ultimately were used in the attempted robbery 

and murder, although there was no evidence any criminal conduct was contemplated at 

that time. Jurors also reasonably could have inferred petitioner knew the guns were 

loaded and operable, and that Eustacio and Josh were carrying the guns, when petitioner, 

Eustacio, and Josh headed for the grocery store on the night the offenses were 

committed.9 Jurors reasonably could have inferred petitioner agreed with the suggestion 

the group “jack” somebody; was aware an armed robbery was contemplated; and gave 

one of the actual killers a ride to Skeeko’s Bar, waited for a likely victim to appear, and 

then acted as a getaway driver after the shooting. Jurors also reasonably could have 

inferred petitioner was close enough to hear and possibly see what was going on, 

although he was not at the immediate location of the killing.

On the other hand, there was no evidence the killing was planned or even 

contemplated. Rather, it appears the shooting occurred in response to the victim resisting 

and striking Josh. There was no evidence petitioner was involved in any planning 

beyond agreeing the group should “jack” someone, after which he simply acquiesced in 

whatever Candido said to do. The Attorney General posits that petitioner was older than 

his confederates, and this fact reasonably supports the inference his participation in 

 

9 Petitioner points out that although he was present when Eustacio and Josh loaded the 

guns on January 14, 1996, which was after the guns had been cleaned and prior to them being 

fired at the shack and in orchard, he was not present when they again loaded the firearms on 

January 17, 1996, the day of the robbery. Nevertheless, the evidence showed Eustacio’s mother 

purchased the ammunition at a sporting goods store. This reasonably suggests she purchased 

more than a few loose bullets. Because Eustacio told petitioner that he (Eustacio) was carrying a 

gun when they left the house the day of the robbery, it is reasonable to infer petitioner surmised 

that gun, at least, was loaded or partially loaded.
21.

planning the robbery was substantial. In our view, however, the conclusion drawn by the 

Attorney General is merely speculative when compared to the actual trial evidence. To 

be relied upon in a determination whether evidence is substantial, an inference “must be 

reasonable. An inference is not reasonable if it is based only on speculation.” (People v. 

Holt (1997) 15 Cal.4th 619, 669.) Similarly, a reasonable inference may not be based on 

mere suspicion, imagination, supposition, surmise, conjecture, or guesswork. (People v. 

Davis (2013) 57 Cal.4th 353, 360.) “ ‘[S]peculation is not evidence, less still substantial 

evidence.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 735.)

The Attorney General further asserts petitioner was, at most, only feet away from 

the deadly encounter. According to Eustacio’s testimony at trial, however, he and 

petitioner were on the street, and there were cars parked in the parking lot between their 

location and where the shooting occurred. Thus, the evidence shows petitioner was in 

close proximity to the shooting, but it does not show he was close enough to exercise a 

restraining effect on the crime or his colleagues.10

The Attorney General says we may fairly infer petitioner knew Eustacio, with 

whom he lived, was a gang member. Even if we assume such an inference is reasonable, 

it says nothing about petitioner’s knowledge of his cohorts’ likelihood of killing. Indeed, 

the Attorney General concedes there is no evidence in the record to show petitioner’s 

confederates had a prior history of violence or that petitioner was aware of any such 

history. That Eustacio was aware Candido was a gang member and knew him “from the 

juvenile hall board” does not mean petitioner possessed this knowledge. Moreover, that 

Eustacio and Candido had a history of delinquency—even if known to petitioner—does 

not, contrary to the Attorney General’s claim, “fairly support an inference that petitioner 

 

10 The Attorney General’s assertion petitioner “wanted a front-row seat” is so conjectural 

that it is not worthy of discussion.
22.

would have expected his armed confederates to use deadly force.” (See Banks, supra, 61 

Cal.4th at pp. 810–811.)

When the evidence and inferences that reasonably can be drawn therefrom are 

examined in accord with the applicable standard, it is readily apparent that, with regard to 

the major participant requirement, petitioner is much closer to the Enmund end of the 

continuum than he is to the Tison end. Taking into account the factors set out in Banks

and Clark, the evidence does not support a finding his participation was any more 

substantial than that of Earl Enmund. To satisfy section 190.2, subdivision (d)’s 

requirement of major participation, 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.” (Banks, supra, 61 Cal.4th at p. 802.)

Nor does petitioner’s conduct demonstrate reckless indifference to human life. 

There is no evidence from which it reasonably can be inferred petitioner harbored a 

willingness to kill, or to assist his confederates in killing, to achieve the goal of robbing 

someone, or that he anticipated the potential for loss of human life beyond that usually 

accompanying an armed robbery. This is not reckless enough to support a specialcircumstance finding. (See Clark, supra, 63 Cal.4th at pp. 617–618.) Considering all the 

evidence, “there appears to be nothing in the plan that one can point to that elevated the 

risk to human life beyond those risks inherent in any armed robbery.” (Id. at p. 623; see 

In re Miller (2017) 14 Cal.App.5th 960, 975–977 (Miller).)

Considering all the circumstances, we conclude no reasonable juror could have 

found defendant aided and abetted the attempted robbery “with reckless indifference to 

human life and as a major participant” (§ 190.2, subd. (d)), as those terms are set out in 

Tison and explicated by Banks and Clark. (Compare In re Bennett (2018) 26 Cal.App.5th 

1002, 1019–1021, 1023–1027 (Bennett) with In re Loza (2017) 10 Cal.App.5th 38, 49–54 

(Loza) & People v. Medina (2016) 245 Cal.App.4th 778, 791–793.) Because the 

evidence is insufficient to sustain the jury’s true finding on count 1’s special 
23.

circumstance, that finding must be vacated. Retrial of the special-circumstance allegation 

is barred. (People v. Lewis (2008) 43 Cal.4th 415, 509, disapproved on another ground in 

People v. Black (2014) 58 Cal.4th 912, 918–920; People v. Perez (2016) 243 Cal.App.4th 

863, 882.)

In reaching this conclusion, we necessarily reject the Attorney General’s 

procedural arguments for barring relief.11

The Attorney General first claims Banks (and, by extension, Clark) is not 

retroactive to final judgments, because it neither created new law nor overruled existing 

California Supreme Court precedent. The nonretroactivity claim was considered and 

rejected in Miller, supra, 14 Cal.App.5th at pages 977 through 978. We agree with that 

court, which stated:

“We begin with an overarching, dispositive point: Federal due 

process guarantees require reversal of the special circumstance finding in 

this case regardless of the Attorney General’s California-law-based 

procedural arguments. That much is clear from the United States Supreme 

Court’s decision in Fiore v. White (2001) 531 U.S. 225 (Fiore). There, the 

high court considered whether Fiore was entitled to habeas corpus relief 

when—after his conviction—the Pennsylvania Supreme Court interpreted 

the relevant penal statute in a manner that made clear Fiore’s conduct was 

not within its scope. (Id. at p. 226.) In response to a certified question 

from the high court, the Pennsylvania Supreme Court stated its 

interpretation of the statute ‘ “did not announce a new rule of law” ’ but 

rather ‘ “merely clarified the plain language of the statute.” ’ (Id. at p. 228.) 

With that answer in hand, the United States Supreme Court recognized 

Fiore’s case ‘present[ed] no issue of retroactivity’ and instead raised only 

the question of ‘whether Pennsylvania can, consistently with the Federal 

 

11 We address these claims out of an abundance of caution. Were there a valid procedural 

bar, we would have expected the California Supreme Court to deny the petition rather than 

issuing an order to show cause returnable before this court. (See In re Robbins (1998) 18 Cal.4th 

770, 814, fn. 34.)

We recognize that procedural bars assist in protecting society’s legitimate and significant 

interest in the finality of its criminal judgments. (In re Reno (2012) 55 Cal.4th 428, 451 (Reno).) 

This purpose loses some of its force in cases, such as petitioner’s, that may be affected by the

Legislature’s enactment, effective January 1, 2019, of section 1170.95.
24.

Due Process Clause, convict Fiore for conduct that its criminal statute, as 

properly interpreted, does not prohibit.’ (Ibid.)

“The high court’s answer, unanimously, was ‘no.’ The court held 

‘the Due Process Clause of the Fourteenth Amendment forbids a State to 

convict a person of a crime without proving the elements of that crime 

beyond a reasonable doubt.’ (Fiore, supra, 531 U.S. at pp. 228–229, citing 

Jackson v. Virginia (1979) 443 U.S. 307 and In re Winship (1970) 397 U.S. 

358.) Thus, in Fiore’s words, ‘[t]he simple, inevitable conclusion is that 

Fiore’s conviction fails to satisfy the Federal Constitution’s demands.’ 

(Fiore, supra, at p. 229.)

“The parallels to our case are exact, and the result must be identical. 

Like the Pennsylvania Supreme Court’s opinion at issue in Fiore, our 

Supreme Court’s opinions in Banks and Clark merely clarified the meaning 

of section 190.2—Banks and Clark merely clarified the ‘major participant’ 

and ‘reckless indifference to human life’ principles that existed when 

defendant’s conviction became final. The federal Constitution therefore 

requires reversal of the special circumstance finding against defendant, and 

the Attorney General’s procedural arguments can be no match for the 

United States Constitution’s demands.” (Miller, supra, 14 Cal.App.5th at 

pp. 977–978; see Bennett, supra, 26 Cal.App.5th at pp. 1006–1007, 1026–

1027 [granting habeas petition based on insufficient evidence of special 

circumstance, under Banks and Clark, without discussion of retroactivity]; 

Loza, supra, 10 Cal.App.5th at pp. 41, 42, 55 [finding no need to discuss 

asserted procedural bars where sufficient evidence of special circumstance 

found under Banks and Clark].)

Next, the Attorney General invokes the rule of In re Lindley (1947) 29 Cal.2d 709, 

723, which generally precludes using habeas corpus as a means of retrying issues of fact 

or reviewing routine claims the evidence presented at trial was insufficient. (Reno, supra, 

55 Cal.4th at p. 505.) Petitioner’s claim is not, however, a “routine” claim of insufficient 

evidence as described in Lindley. It does not involve retrying issues of fact, but rather the 

application of law to established facts. (See Miller, supra, 14 Cal.App.5th at pp. 979–

980.) Accordingly, it falls outside Lindley’s limitation. (See In re Harris (1993) 5 

Cal.4th 813, 840–841; In re Zerbe (1964) 60 Cal.2d 666, 667–668.)

Last, the Attorney General contends petitioner’s claim is barred by the rule of In 

re Waltreus (1965) 62 Cal.2d 218, 225, which holds that “habeas corpus ordinarily 
25.

cannot serve as a second appeal.” This is not, however, an “ordinary” situation. Our 

analysis of petitioner’s claim on direct appeal did not comport with the California 

Supreme Court’s subsequent analyses of the issue in Banks and Clark.

12

 Relief is 

appropriate. (See In re Jackson (1964) 61 Cal.2d 500, 505–506.)

DISPOSITION

The petition for writ of habeas corpus is granted. The special circumstance found 

true under Penal Code section 190.2, subdivision (a)(17) with respect to count 1 is 

vacated. The matter is remanded to the trial court with directions to resentence petitioner 

on that count, consistent with the views expressed in this opinion.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

SNAUFFER, J.

_____________________

DESANTOS, J.

 

12 We stated: “We reject defendant’s argument that he was not a major participant in the 

attempted robbery. Defendant is analogous to the driver of the getaway car, only in this case it 

was the getaway bicycle. He transported Josh, one of the actual killers, to the robbery site. He 

then held Candido’s bicycle while Candido and Josh approached the truck. After hearing the 

shots, defendant did not stop to assist the victim, or even flee in panic. Rather, he returned 

Candido’s bicycle to him and transported Josh on the handlebars of his own bicycle away from 

the scene of the crime. The evidence also shows that defendant retrieved the cleaned guns which 

were used in the robbery and he knew that Josh and Eustacio and later Candido were armed at 

the time the robbery was planned. Finally, during his pretrial interview defendant testified that 

he deliberately averted his gaze from the victim. We therefore conclude that the evidence was 

sufficient to support the finding that defendant was a major participant in the attempted robbery 

and that he acted with reckless disregard for the victim’s life.” (People v. Ramirez, supra, 

F029659, fn. omitted.)