Filed 8/25/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re TYRONE A. MILLER

on Habeas Corpus. 

 B278902

 (Los Angeles County

 Super. Ct. No. BA226937)

ORIGINAL PROCEEDINGS; petition for writ of habeas 

corpus. Norman P. Tarle, Judge. Petition granted.

Leslie Conrad, under appointment by the Court of Appeal, 

for Petitioner.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy 

Attorney General, Allison H. Chung, Deputy Attorney General, 

for Respondent.
2

In August 2002, a jury convicted petitioner Tyrone A. 

Miller (defendant) of the first degree felony murder of Rene 

Franco (Franco) (Pen. Code, § 187, subd. (a))1and the second 

degree robbery of Ana Saravia (Saravia) (§ 211). Defendant was 

not the person who shot Franco, nor was he present at the scene 

when the shooting occurred; instead, he was convicted of murder 

for aiding and abetting an associate who shot Franco after

snatching Saravia’s purse. The jury found the killing occurred in 

the commission of a robbery within the meaning of section 190.2, 

subdivision (a)(17)(A)—a “special circumstance” that required a 

sentence of life in prison without the possibility of parole (§ 190.2, 

subd. (d)). Years later, our Supreme Court decided People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark), which discuss when section 190.2 

authorizes a special circumstance life without parole sentence for

a felony-murder defendant convicted as an aider and abettor. We 

consider whether Banks and Clark, which explain what it means 

for an aiding and abetting defendant to be a “major participant” 

who acted with a “reckless indifference to human life,” entitle 

defendant to a writ of habeas corpus ordering resentencing 

because the special circumstance finding cannot stand. 

I. BACKGROUND

On May 26, 2000, defendant, Derrick Patton (Patton), and 

Melvin Tate (Tate)—who was 17 years old at the time—met at 

Tate’s house where they discussed defendant’s plan to commit a 

“follow-home robbery.” Defendant, Patton, and Tate were all 

 

1 Undesignated statutory references that follow are to the 

Penal Code.
3

members of the 4-Deuce Crips street gang and had committed 

follow-home robberies with one another, and with others, in the 

past.

The robberies were typically conducted as follows: A

“spotter” would go into a bank, locate a person withdrawing a 

large amount of cash, and identify that person for the others 

involved in committing the robbery. The “driver” would tail the 

victim to his or her destination, and the “getter” would take the 

money. According to Tate, who testified as a witness for the 

prosecution at trial, they did not always carry a gun during 

follow-home robberies; it depended on the age, size, and sex of the 

victim, as well as whether the victim was alone. 

Tate estimated he had participated in six prior robberies 

with Patton and seven or eight with defendant. Tate recalled, in 

particular, two prior follow-home robberies he committed with 

defendant. In one, defendant served as the spotter and Tate 

carried a fake gun. In the other, the victim was a woman and 

defendant’s role was not specified. As for robberies he committed 

with Patton, Tate recalled only one instance involving a gun.

Patton was carrying the gun in his pocket during the robbery. 

When the victim grabbed onto him during a scuffle, the gun went 

off, shooting Patton in the arm. 

On the date of Franco’s murder, defendant was the spotter, 

Patton the driver, and Tate the getter. Defendant entered a bank 

with his young daughter while Patton and Tate remained in 

Patton’s car across the street. Saravia and Franco were inside

the bank at the time, and Saravia withdrew $7,500 she planned 

to use to buy a car. Defendant exited the bank after Saravia and 

Franco and instructed Patton and Tate to “follow the blue van.” 

He told them Saravia had “a lot of money” in her purse. 
4

Saravia and Franco drove to an automobile dealership and

parked about half a block from its entrance. Patton parked his 

car in the dealership’s driveway. He retrieved a gun from the 

driver’s side door panel and tossed it to Tate, saying, “[m]ake 

sure you get the purse.” 

Saravia was “short” and “kind of heavyset.” Franco was a 

“big guy” but “older” and “walked like he had a limp.” As Franco 

and Saravia walked past Tate, he grabbed Saravia’s purse.

Saravia fell to the ground, and Tate told her not to get up. When 

Franco moved towards Tate, Tate shot him in the chest. Franco, 

despite being shot, managed to get back in his van, but he was 

unable to drive on account of his wound. He died before he could 

be treated at a hospital. 

Tate jumped back into Patton’s car, and they went to 

defendant’s house to divide the money. Tate received $500 of the 

$7,500. 

Police connected Tate to the scene of Franco’s murder with 

DNA evidence found during their investigation. Tate pled guilty 

to one count of first degree murder and agreed to testify against 

defendant and Patton in the expectation he would receive a 

prison sentence of 25 years to life (with the possibility of parole) 

and the prosecution would drop several robbery charges against 

him. When the police arrested Patton, they found a gun in his 

car that resembled the gun Tate said he used to kill Franco. 

Defendant and Patton were jointly tried in August 2002. 

The jury convicted both men of the first degree murder of Franco 

on an aiding and abetting theory, as well as the second degree 

robbery of Saravia. The jury found true the section 190.2 

robbery-murder special circumstance alleged by the prosecution,

as well as a section 12022.53, subdivision (d) sentence 
5

enhancement alleging a principal personally and intentionally 

discharged a firearm, causing death. The trial court sentenced 

defendant to a prison term of life without the possibility of parole 

based on the robbery-murder special circumstance, plus 25 years 

to life (with the possibility of parole) pursuant to the section 

12022.53, subdivision (d) enhancement. The court stayed 

sentences imposed on the robbery conviction and other 

enhancements the jury found true. 

Defendant appealed his conviction and argued, among 

other things, the evidence was insufficient to support the 

robbery-murder special circumstance finding. We affirmed the 

judgment in an unpublished opinion. (People v. Patton (Oct. 20, 

2003, B163619) [nonpub. opn.].) 

Much later, in September 2016, defendant filed a petition 

for a writ of habeas corpus in the superior court, contending our 

Supreme Court’s recent decision in Banks, supra, 61 Cal.4th 788

required the court to vacate his sentence of life imprisonment 

without parole, which rested on the special circumstance finding. 

The court denied his petition. Defendant then filed a pro se 

petition for a writ of habeas corpus in this court, again seeking 

relief based on Banks. We appointed counsel to represent 

defendant, and counsel filed an amended petition on his behalf. 

We subsequently ordered the Department of Corrections and 

Rehabilitation to show cause why a writ should not issue.

II. DISCUSSION

Defendant contends our Supreme Court’s recent decisions 

in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, 

which explain when a felony-murder aider and abettor may be 

sentenced to life in prison without the possibility of parole,
6

compel the conclusion that the evidence against him was 

insufficient to justify the special circumstance finding. In 

response, the Attorney General argues defendant is not entitled 

to rely on Banks and Clark for a host of reasons, most of which 

are procedural: because claims of insufficient evidence are not 

reviewable by way of a habeas corpus petition; because defendant

is procedurally barred from asserting his claim following this 

court’s prior rejection of it on direct appeal; because Banks and 

Clark should not apply “retroactively”; and, on the merits, the 

evidence against him is sufficient to show he was a major 

participant who acted with reckless indifference to human life 

even on the understanding espoused in Banks and Clark.

We conclude the Banks and Clark decisions govern the 

disposition of defendant’s habeas petition and, further, that the 

standards articulated in those decisions entitle him to the relief 

he seeks. After reviewing the record of defendant’s conduct 

against the requirements for section 190.2, subdivision (d) 

discussed in Banks and Clark, we are convinced the evidence

against defendant would not permit a jury to rationally conclude 

he exhibited a reckless indifference to human life. Among other 

relevant considerations, defendant was not present at the scene 

of the crime and there was no evidence he knew lethal force was 

appreciably more likely than that inherent in a “garden-variety

armed robbery, where death might be possible but not 

probable . . . .” (Banks, supra, 61 Cal.4th at p. 802.)

A. The Robbery-Murder Special Circumstance, and the 

Banks and Clark Decisions

In 1990, state voters passed Proposition 115, which 

“revised the scope of capital liability for aiding and abetting 
7

felony murders by looking to federal constitutional law.” (Banks, 

supra, 61 Cal.4th at p. 798.) Section 190.2, subdivision (d) 

provides that “every person, not the actual killer, who, with 

reckless indifference to human life and as a major participant, 

aids, abets, counsels, commands, induces, solicits, requests, or 

assists in the commission of a [specified felony, including 

robbery,] which results in the death of some person or persons, 

and who is found guilty of murder in the first degree therefor, 

shall be punished by death or imprisonment in the state prison 

for life without the possibility of parole if a[n enumerated] special 

circumstance . . . has been found to be true under Section 190.4.” 

“The statute thus imposes both a special actus reus requirement, 

major participation in the crime, and a specific mens rea 

requirement, reckless indifference to human life.” (Banks, supra,

at p. 798, fn. omitted.) Participating in a robbery-murder is one 

of the special circumstances for which an aider and abettor may 

be punished by death or life imprisonment without parole. 

(§ 190.2, subd. (a)(17)(A).) 

1. Banks

In the 2015 Banks case, our Supreme Court discussed

“under what circumstances an accomplice who lacks the intent to 

kill may qualify as a major participant so as to be statutorily 

eligible for the death penalty” or life imprisonment without 

parole.2 (Banks, supra, 61 Cal.4th at p. 794.) 

 

2 The Banks court noted that its analysis of section 190.2, 

subdivision (d) applied equally to sentences of life imprisonment 

without parole. (Banks, supra, 61 Cal.4th at p. 804.)
8

Before the Supreme Court was the appeal of Lovie Troy 

Matthews (Matthews), who served as the getaway driver for an 

armed robbery in which a security guard was killed. (Banks, 

supra, 61 Cal.4th at p. 794.) Leon Banks (Banks), David 

Gardiner (Gardiner), and Brandon Daniels (Daniels) attempted 

to rob a medical marijuana dispensary. (Id. at p. 795.) Banks 

and at least one of the other men were armed. (Ibid.) When

Banks, Gardiner, and Daniels were fleeing the dispensary, Banks 

and a security guard began shooting at each other, and Banks 

killed the guard. (Ibid.) Matthews was not present at the scene 

of the robbery, but he picked up Daniels and Gardiner a block 

away shortly thereafter. (Ibid.)

Matthews, Daniels, and Gardiner were all members of the 

same criminal street gang. (Banks, supra, 61 Cal.4th at p. 796.)

At a joint trial of Matthews and Banks, no evidence was

presented that Matthews, Daniels, or Gardiner had killed in the 

past, or that Matthews knew Banks had killed anyone before the 

marijuana dispensary robbery when he shot the guard. (Ibid.) 

The jury convicted Matthews of first degree murder and found 

true the robbery-murder special circumstance, which resulted in 

Matthews receiving a prison sentence of life without the 

possibility of parole. (Id. at p. 797.)

To determine whether Matthews’s sentence was permitted 

under section 190.2, subdivision (d), our state’s high court looked 

to two United States Supreme Court decisions: Tison v. Arizona

(1987) 481 U.S. 137 (Tison), the holding of which was “mirrored” 

in the language of section 190.2, subdivision (d) (Banks, supra, 61 

Cal.4th at p. 798), and an earlier case, Enmund v. Florida (1982) 

458 U.S. 782 (Enmund). Enmund and Tison both addressed the 

constitutionality of sentencing a felony-murder defendant to 
9

death where the defendant did not actually commit the killing

and there was no proof the defendant specifically intended to kill. 

The decisions have come to embody two points on a continuum of 

culpability, with the defendant in Enmund presenting an 

example of conduct insufficient to permit capital punishment 

while the defendants in Tison serve as an example of conduct 

plainly sufficient to demonstrate major participation and reckless 

disregard for human life, which justifies a sentence of death. 

In Enmund, the defendant was the getaway driver in an 

armed robbery in which his associates killed two people. There 

was some evidence Enmund planned the robbery (Enmund, 

supra, 458 U.S. at p. 803 (dis. opn. of O’Connor, J.)) but no 

evidence he was present when the killing occurred (id. at p. 786

(maj. opn. of White, J.)). The high court held sentencing to death 

“one such as Enmund who aids and abets a felony in the course of 

which a murder is committed by others but who does not himself 

kill, attempt to kill, or intend that a killing take place or that 

lethal force will be employed” violated the Eighth Amendment. 

(Id. at p. 797.) The court emphasized imposing a sentence of 

death must be commensurate with the defendant’s individual

culpability, “not on that of those who committed the robbery and 

shot the victims . . . .” (Id. at p. 798.) Because “Enmund himself 

did not kill or attempt to kill” and the record did “not warrant a 

finding that Enmund had any intention of participating in or 

facilitating a murder,” his culpability could not be equated with 

that of his confederates who actually robbed and killed. (Ibid.) 

The high court further observed that the probability a robbery 

would result in a killing was not “so substantial that one should 

share the blame for the killing if he somehow participated in the 

felony.” (Id. at p. 799.)
10

In Tison, on the other hand, the United States Supreme 

Court concluded the defendants, Ricky (Ricky) and Raymond 

(Raymond) Tison, could be sentenced to death even though they 

did not actually commit the murders in question and did not 

specifically intend the victims to die. Ricky and Raymond, along 

with another brother and other relatives, planned to break their 

father, Gary Tison (Gary), and his cellmate out of prison. (Tison, 

supra, 481 U.S. at p. 139.) The sons accomplished the escape by 

entering the prison with an ice chest full of guns, arming Gary 

and his cellmate, and locking guards and visitors in a closet. 

(Ibid.) Both Gary and his cellmate were convicted murderers; 

Gary had killed a guard in a previous prison escape. (Ibid.)

The escape vehicle got a flat tire during the course of their 

flight from the prison, and they decided to steal a car. (Tison, 

supra, 481 U.S. at pp. 139-140.) Raymond flagged down a 

passing vehicle while the others armed themselves and hid. (Id. 

at p. 140.) The car was occupied by a married couple, their 

toddler, and their teenage niece (hereafter the Lyons family), and 

the others in hiding emerged when the car stopped and then 

forced the Lyons family into the backseat of their car. (Ibid.) 

Raymond drove the escape vehicle into the desert, while Ricky, 

Gary, and his cellmate followed in the Lyons family car. (Ibid.)

Once out in the desert, the Lyons family father pleaded 

with the group not to kill them. (Tison, supra, 481 U.S. at p. 

140.) Gary, however, was clearly contemplating it. (Ibid.) Ricky 

and Raymond went to get some water, and when they returned 

and were within sight of the others, they saw Gary and his 

cellmate raise their shotguns and shoot the Lyons family. (Id. at 

p. 141.) According to Ricky and Raymond, they were surprised by 
11

the shooting but they did nothing to stop it or to aid the victims.3 

(Ibid.) 

The police apprehended the Tisons and Gary’s cellmate 

several days later. (Tison, supra, 481 U.S. at p. 141.) Raymond 

and Ricky were tried and convicted of the murder of the Lyons 

family, plus associated felonies, and sentenced to death. (Ibid.)

In considering Raymond and Ricky’s challenges to their 

capital sentences, the high court relied on and distinguished its 

prior decision in Enmund. The court reaffirmed the principle 

announced in Enmund that imposing the death sentence on an 

aider and abettor who had no intent or purpose that life would be 

taken would violate the Eighth and Fourteenth Amendments. 

(Tison, supra, 481 U.S. at p. 148.) In addition, mere 

foreseeability that a murder might occur in the course of an 

armed robbery does not establish a defendant specifically intends 

to kill “in the traditional sense” because “[p]articipants in violent 

felonies like armed robberies can frequently ‘anticipat[e] that 

lethal force . . . might be used’” and that anticipation “amounts to 

little more than a restatement of the felony-murder rule itself.” 

(Id. at pp. 150-151.) The high court held, however, that even 

without a specific intent to kill, an aiding and abetting felonymurder defendant who exhibited substantial participation in the 

felony, combined with a mental state of reckless indifference to 

human life, could be sentenced to death. (Id. at pp. 157-158.)

As it had done in Enmund, the Tison court conducted an 

individualized assessment of Raymond and Ricky’s culpability. 

In doing so, the court found Raymond and Ricky’s participation in 

 

3 There was evidence the niece was still alive for a time after 

the shooting. (Tison, supra, 481 U.S. at p. 141.) 
12

the deaths of the Lyons family to be “anything but minor.” 

(Tison, supra, 481 U.S. at p. 152.) The brothers knowingly armed 

two convicted murderers, one of whom had killed a guard in a 

previous prison escape. (Id. at p. 151.) Raymond admitted he 

was prepared to kill during the subsequent escape. (Ibid.) 

Raymond lured the Lyons family into the clutches of his armed 

confederates, and Ricky guarded them at gunpoint while Gary 

considered killing them. (Id. at pp. 140, 151.) Both brothers 

watched Gary and his cellmate kill the Lyons family without 

attempting to help the victims before, during, or after. (Id. at p. 

151.) “Far from merely sitting in a car away from the actual 

scene of the murders acting as the getaway driver to a robbery, 

[Raymond and Ricky were each] actively involved in every 

element of the kidnapping-robbery and [were] physically present 

during the entire sequence of criminal activity culminating in the 

murder of the Lyons family and the subsequent flight.” (Id. at p. 

158.)

The brothers’ conduct showed their participation in the 

crime was “major” and their mental state was “one of reckless 

indifference to human life.” (Tison, supra, 481 U.S. at p. 158.) 

The high court held that combination of conduct and mental state 

was “sufficient to satisfy the Enmund culpability requirement.” 

(Ibid.)

In considering the import of Enmund and Tison, our 

Supreme Court in Banks observed that capital-eligible felonymurder cases require an individualized assessment of “the 

defendant’s personal role in the crimes leading to the victim’s 

death and . . . the defendant’s individual responsibility for the 

loss of life, not just his or her vicarious responsibility for the 

underlying crime.” (Banks, supra, 61 Cal.4th at p. 801.) To 
13

satisfy section 190.2, subdivision (d)’s conduct requirement

(major participation), the defendant’s “personal involvement 

must be substantial, greater than the actions of an ordinary aider 

and abettor to an ordinary felony murder such as Earl Enmund.” 

(Id. at p. 802.) To satisfy the mental state required by section 

190.2, subdivision (d) (reckless indifference), the defendant must 

have ‘“‘‘knowingly engag[ed] in criminal activities known to carry 

a grave risk of death.’” [Citations.] The defendant must be 

aware of and willingly involved in the violent manner in which 

the particular offense is committed, demonstrating reckless 

indifference to the significant risk of death his or her actions 

create.” (Id. at p. 801.) 

To help guide the analysis of whether a defendant can be 

found to have been a major participant in a felony murder, the 

Banks court listed the following questions designed to 

“distinguish the Tisons from Enmund,” noting no individual 

factor was necessary nor was any one of them necessarily 

sufficient: “What role did the defendant have in planning the 

criminal enterprise that led to one or more deaths? What role did 

the defendant have in supplying or using lethal weapons? What 

awareness did the defendant have of particular dangers posed by 

the nature of the crime, weapons used, or past experience or 

conduct of the other participants? Was the defendant present at 

the scene of the killing, in a position to facilitate or prevent the 

actual murder, and did his or her own actions or inaction play a 

particular role in the death? What did defendant do after lethal 

force was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted; 

see also id. at p. 803, fn. 5 [“In cases where lethal force is not part 

of the agreed-upon plan, absence from the scene may significantly 

diminish culpability for death”].)
14

Applying the foregoing factors to Matthews’s case, the 

Banks court concluded he was not a major participant. There 

was no evidence Matthews planned the robbery, obtained the 

guns used in its commission, knew his confederates had killed 

before, or was present at the scene of the robbery and killing. 

(Banks, supra, 61 Cal.4th at p. 805.) 

Our Supreme Court further held Matthews did not exhibit

a reckless indifference to human life. (Banks, supra, 61 Cal.4th 

at p. 807.) In the court’s view, Enmund and Tison established 

that “participation in an armed robbery, without more, does not 

involve ‘engaging in criminal activities known to carry a grave 

risk of death.’ [Citation.]” (Id. at p. 805.) Like Enmund, 

Matthews was “no more than a getaway driver . . . .” (Ibid.) 

There was no evidence Matthews knew the marijuana dispensary 

was guarded or that the guard might be armed. (Id. at p. 811.) 

He “did not see the shooting happen, did not have reason to know 

it was going to happen, and could not do anything to stop the 

shooting or render assistance.” (Id. at p. 807.) Evidence 

Matthews may have known he was taking part in an armed 

robbery was insufficient to show he “subjectively” knew “his own 

actions would involve a grave risk of death.” (Ibid.) 

2. Clark

Our high court built upon its discussion in Banks, with 

greater emphasis on the requirements of reckless indifference, 

when it decided Clark, supra, 63 Cal.4th 522 the following year. 

The defendant, William Clinton Clark (Clark), was convicted of 

two murders on an aiding and abetting theory, and the court 

sentenced him to death on the basis of five special circumstance 

findings, two of which related to the first murder and three to the 
15

second. (Id. at pp. 534-535.) The Clark court concluded the 

burglary-murder and robbery-murder special circumstance 

findings that related to the first murder were not supported by 

sufficient evidence. (Id. at p. 611.) The facts, in sum, were these.

Nokkuwa Ervin (Ervin) shot the mother of a store employee

during an attempted robbery of a CompUSA store. (Clark, supra, 

63 Cal.4th at p. 535.) Ervin entered the store after closing time 

and handcuffed its employees so that his accomplices, including 

Clark, could remove computers. (Id. at pp. 536, 613.) While the 

nighttime robbery was underway, Ervin was apparently taken by 

surprise when Kathy Lee, the mother of one of the employees, 

unexpectedly appeared at the store to pick up her son. (Id. at pp. 

537, 539.) Ervin shot and killed her with the single bullet loaded

in his revolver. (Id. at p. 537.) Although Clark was not “in the 

immediate area where Ervin shot Kathy Lee” (id. at p. 614), he 

drove to the store soon after and fled when he saw a woman on 

the ground, police cars approaching, and Ervin attempting to 

escape (id. at p. 537). 

The Clark court found there was substantial evidence 

Clark “was the mastermind who planned and organized the 

attempted robbery and who was orchestrating the events at the 

scene of the crime.” (Clark, supra, 63 Cal.4th at p. 612.) A 

factfinder could infer from the evidence presented that Clark’s 

plans called for one of the participants to carry a gun, although 

the expectation was that it would be unloaded. (Id. at p. 613.) 

There was no evidence, however, regarding Clark’s “awareness of 

the past experience or conduct of Ervin, the shooter” or of his 

“awareness of the particular dangers posed by the crime, beyond 

his concern to schedule the robbery after the store’s closing time.” 

(Id. at p. 614.)
16

Our Supreme Court declined to decide whether Clark was a 

“major participant” for purposes of section 190.2, subdivision (d). 

(Clark, supra, 63 Cal.4th at p. 614.) The court noted it had 

previously upheld a finding, in People v. Williams (2015) 61 

Cal.4th 1244, 1281, that a defendant was a major participant

despite not being present at the scene of the felony murder where 

he was “‘the founder, ringleader, and mastermind behind’ a 

criminal gang engaged in carjacking” and where he had 

instructed his subordinates “‘that a resisting victim was to be 

shot.’” (Ibid.) Thus, Clark’s absence from the scene of the killing 

did not necessarily preclude the applicability of section 190.2, 

subdivision (d). 

Even though Clark might qualify as a major participant, 

the court concluded the jury’s robbery-murder and burglarymurder findings were not backed by sufficient evidence that 

Clark exhibited a reckless indifference to human life. Tison had 

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

‘implicit in knowingly engaging in criminal activities known to 

carry a grave risk of death.’ [Citation.]” (Clark, supra, 63 

Cal.4th at p. 616.) Enmund made clear, however, that a 

defendant’s participation in an armed robbery, without more, was 

insufficient to show the defendant knew his activities carried a 

grave risk of death. (Id. at pp. 617-618.)

The Clark court recognized there was a “‘significant[ ] 

overlap’” in the requirements for the major participant and 

reckless indifference elements to section 190.2, subdivision (d). 

(Clark, supra, 63 Cal.4th at pp. 614-615, citing Tison, supra, 481 

U.S. at p. 153.) To focus the analysis that must be undertaken to 

decide the sufficiency of proof of reckless indifference, the Clark

court highlighted a number of factors that warrant consideration: 
17

the defendant’s knowledge of weapons, and the use and number 

of weapons; the defendant’s proximity to the crime and 

opportunity to stop the killing or aid the victim; the duration of 

the offense conduct, that is, “whether a murder came at the end 

of a prolonged period of restraint of the victims by defendant”; the 

defendant’s awareness his or her confederate was likely to kill; 

and the defendant’s efforts to minimize the possibility of violence 

during the crime. (Id. at pp. 618-623.) 

Applying these factors in Clark’s case, the court concluded 

there was insufficient evidence Clark was recklessly indifferent

to human life. The crime involved only one gun, holding just one 

bullet, and it was carried by Ervin, not Clark. (Clark, supra, 63 

Cal.4th at p. 619.) Clark was not physically present when Ervin 

killed Kathy Lee and was therefore unable to intervene. (Ibid.) 

Nor was there evidence Clark instructed Ervin to kill, or that he 

knew Ervin was predisposed to be violent. (Id. at pp. 619, 621.) 

Finally, Clark planned for the robbery to take place after the 

store closed, and the gun was not supposed to be loaded (id. at pp. 

620-622)—two facts that evinced some intent to avoid loss of life 

rather than a reckless obliviousness to homicide. In sum, the 

court believed there was “nothing in [Clark’s] plan that one can 

point to that elevated the risk to human life beyond those risks 

inherent in any armed robbery.” (Id. at p. 623.) 

3. The sufficiency of the evidence to support the 

jury’s special circumstance finding in this case

We now apply the principles set forth in Banks, Clark, 

Enmund, and Tison to defendant’s claim on habeas. “The 

standard of review for a sufficiency of the evidence claim as to a 

special circumstance is whether, when evidence that is 
18

reasonable, credible, and of solid value is viewed ‘in the light 

most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the allegation beyond a 

reasonable doubt.’ [Citations.] The standard is the same under 

the state and federal due process clauses. [Citation.] We 

presume, in support of the judgment, the existence of every fact 

the trier of fact could reasonably deduce from the evidence, 

whether direct or circumstantial. [Citation.]” (Clark, supra, 63 

Cal.4th at p. 610.)

Considering the “totality of the circumstances” derived 

from the evidence presented in defendant’s trial (Banks, supra, 

61 Cal.4th at p. 802), we conclude the robbery-murder special 

circumstance finding must be vacated. On the continuum of 

culpability for felony-murder defendants, defendant (who was not 

the actual killer and was not shown to have harbored an intent to 

kill) is decidedly closer to Enmund, Matthews, and Clark than he 

is to the Tison brothers.4 

 

4 When the Banks court considered the “spectrum of 

culpability” described in Enmund and Tison, it maintained those 

cases did not represent a ceiling or floor for determining when an 

aider and abettor felony-murder defendant was eligible for 

capital punishment or life imprisonment without parole. (Banks, 

supra, 61 Cal.4th at p. 811.) Thus, the fact a particular 

defendant may appear more culpable than Enmund does not 

automatically make him death eligible. (Ibid.) Nor must a 

defendant be as culpable as Raymond or Ricky Tison for section 

190.2, subdivision (d) to apply. (Ibid.) The question is one of 

degree, and for reasons we explain, the balance for defendant 

strongly tips toward the non-liability end of the spectrum.
19

Like Clark, there is evidence defendant was the 

“mastermind” behind the robbery that resulted in Franco’s death. 

Tate testified the robbery was defendant’s plan, and the jury 

could certainly conclude defendant received a larger share of the 

robbery proceeds than Tate. At the same time, defendant is

similar to Clark and Enmund (and Matthews) in mitigating 

respects: He was not present at the scene of the killing and 

therefore had no opportunity to thwart it or assist the victim. 

The gun used in the crime was supplied by Patton, not defendant, 

and there was no evidence defendant believed Tate or Patton had 

killed in the past (unlike the Tison brothers’ knowledge of Gary 

Tison and his cellmate’s history). 

But again like Clark, we need not determine whether 

defendant’s planning activity sufficed to make him a major 

participant under section 190.2, subdivision (d) because we are 

convinced the evidence was insufficient to show defendant acted 

with a reckless indifference to human life. 

As instructed by Clark, we consider defendant’s knowledge 

of weapons used in the crime, and their actual use and number; 

defendant’s proximity to the crime and opportunity to stop the 

killing or aid Franco; the duration of the crime; defendant’s 

knowledge of Tate’s propensity to kill; and defendant’s efforts to 

minimize the possibility of violence during the crime. 

Here, there was no evidence defendant knew a gun would 

be used in the robbery. The gun Tate used apparently belonged 

to Patton, and Tate said he would not have used it had Saravia 

exited the van alone. In the previous robberies Tate testified to 

committing with defendant, a fake gun had been used in one and 

there was no evidence a gun had been used in the other. 

Defendant was aware that Patton had carried a gun and 
20

accidentally shot himself in one of the numerous follow-home 

robberies committed in the past, but that says nothing about 

defendant’s knowledge Tate would be given (and use) a gun in the 

robbery of Saravia. Thus, evidence of defendant’s awareness a 

gun would be used was less than that established in Clark, where 

the defendant knew an operable firearm would be used, even 

though it was supposed to be unloaded. 

Defendant was also absent from the scene of the killing, 

and therefore had no opportunity to stop it or to help Franco. 

This is another respect in which the evidence of reckless 

indifference here was weaker than in Clark (where the defendant 

was found ineligible for a special circumstance finding)—Clark 

appeared at the scene soon after the killing and was conceivably 

in a position to aid the victim. 

The duration of the crime also counsels against finding 

defendant exhibited reckless indifference to human life. Tate’s 

killing of Franco appeared to be somewhat impulsive, much like 

the shootings in Banks and Clark; all three shootings occurred 

when the shooter was unexpectedly confronted. In Banks, the 

security guard was shot when he was pushing on the front door of 

the establishment from the outside in an attempt to keep the 

robbers inside. (Banks, supra, 61 Cal.4th at p. 795; see also id. at 

p. 807 [observing that the shootings in that case and in Enmund

were both apparently spontaneous, in contrast to the killing of 

the Lyons family in Tison].) In Clark, the shooter was surprised 

by the arrival of a store employee’s mother. (Clark, supra, 63 

Cal.4th at p. 539.) In this case, Tate seemed not to expect Franco 

would go after him. Tate testified the shooting was accidental, 

and that he fired the gun because he got scared. Tison starkly 

contrasts with these three cases. Ricky and Raymond Tison 
21

intentionally lured the Lyons family into a trap, drove them into 

the desert, stood guard as they pleaded for their lives and Gary 

contemplated aloud whether to kill them, and watched as the 

victims were shot. (Tison, supra, 481 U.S. at pp. 140-141.)

Even though defendant and Tate belonged to the same 

gang and had committed follow-home robberies together in the 

past, “[n]o evidence indicated [defendant and Tate] had ever 

participated in shootings, murder, or attempted murder . . . .”5 

(Banks, supra, 61 Cal.4th at pp. 810-811.) In one of the two prior 

robberies Tate described committing with defendant, a fake gun 

was used. In the other, the victim was a woman, and evidence 

indicated defendant and his associates did not carry guns when 

they robbed women. The prosecution’s gang expert testified the 

4-Deuce Crips’s primary activities were robberies and narcotics; 

murder or attempted murder were not on the expert’s list of 

crimes often committed by the gang.

6

 

 

5 A witness who personally knew Patton, Tate, and 

defendant told police in an interview during the investigation 

that she knew Tate “to be a killer” and knew “of him shooting up 

places.” At trial, the witness said she did not recall making those 

statements and they were untrue in any event. She maintained 

she did not know Tate killed or was likely to kill anyone, and 

explained she may have told the police otherwise based on 

“rumors,” because Tate “st[ood] his own ground,” and because of 

“the way he carr[ied] guns and he was so young.” Tate testified 

he had never shot a .38 caliber revolver before he shot Franco.

6 The expert testified the gang resorted to violence to protect 

their territory from “rival gangs” and “rival narcotics dealers.” 

The victim in this case and in other follow-home robberies were 

obviously not rival gang members. 
22

The evidence that Tate regularly used PCP, including on 

the day he killed Franco, also cannot support a reasonable 

inference defendant knew Tate was likely to kill. For one thing, 

and as we have already discussed, there was no evidence 

defendant even knew Tate would be armed during the Saravia 

robbery. In addition, there was no expert testimony at trial 

about the effects of PCP; Tate himself testified the drug made

him “a little slow” or “relaxed,” which would not support an 

inference he was more prone to kill.

Considering all the evidence against defendant, “there 

appears to be nothing in the plan that one can point to that 

elevated the risk to human life beyond those risks inherent in 

any armed robbery.” (Clark, supra, 63 Cal.4th at p. 623;

compare, e.g., In re Loza (2017) 10 Cal.App.5th 38, 50 [even if 

defendant believed killer was joking when he said he had shot 

someone in the head prior to defendant arming him to commit 

robbery, the killer’s statement “at the very least revealed that 

[the defendant] with eyes wide open embarked upon an armed 

robbery with the type of cohort who callously bragged about 

having shot another human being moments earlier”].) Like the 

defendant in Banks, defendant here “did not see the shooting 

happen, did not have reason to know it was going to happen, and 

could not do anything to stop the shooting or render assistance.” 

(Banks, supra, 61 Cal.4th at p. 807.) He was not “aware of and 

willingly involved in the violent manner in which the particular 

offense [was] committed . . . .” (Id. at p. 801.) Under Banks and 

Clark, the evidence of defendant’s individual culpability was 

insufficient to support the special circumstance finding that 

resulted in a sentence of life in prison without the possibility of 

parole.
23

B. The Attorney General’s Procedural Arguments

Although we conclude the evidence cannot support a special 

circumstance finding, we must separately assess whether the 

Attorney General’s procedural arguments bar relief. The 

Attorney General contends defendant’s petition should be denied 

because his argument was previously considered and rejected on 

direct appeal and because claims of insufficient evidence are not 

cognizable in a habeas corpus petition. The Attorney General 

further contends Banks and Clark do not apply, as his brief puts 

it, “retroactively.” Each of these arguments is unconvincing, for 

reasons we now explain. 

We begin with an overarching, dispositive point: Federal 

due process guarantees require reversal of the special 

circumstance finding in this case regardless of the Attorney 

General’s California-law-based procedural arguments. That 

much is clear from the United States Supreme Court’s decision in 

Fiore v. White (2001) 531 U.S. 225 (Fiore). There, the high court 

considered whether Fiore was entitled to habeas corpus relief 

when—after his conviction—the Pennsylvania Supreme Court 

interpreted the relevant penal statute in a manner that made 

clear Fiore’s conduct was not within its scope. (Id. at p. 226.) In 

response to a certified question from the high court, the 

Pennsylvania Supreme Court stated its interpretation of the 

statute “‘did not announce a new rule of law’” but rather “‘merely 

clarified the plain language of the statute.’” (Id. at p. 228.) With 

that answer in hand, the United States Supreme Court 

recognized Fiore’s case “present[ed] no issue of retroactivity” and 

instead raised only the question of “whether Pennsylvania can, 

consistently with the Federal Due Process Clause, convict Fiore 
24

for conduct that its criminal statute, as properly interpreted, does 

not prohibit.” (Ibid.)

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

held “the Due Process Clause of the Fourteenth Amendment 

forbids a State to convict a person of a crime without proving the 

elements of that crime beyond a reasonable doubt.” (Fiore, supra, 

531 U.S. at pp. 228-229 [citing Jackson v. Virginia (1979) 443 

U.S. 307 and In re Winship (1970) 397 U.S. 358].) Thus, in 

Fiore’s words, “[t]he simple, inevitable conclusion is that Fiore’s 

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

(Fiore, supra, at p. 229.)

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

identical. Like the Pennsylvania Supreme Court’s opinion at 

issue in Fiore, our Supreme Court’s opinions in Banks and Clark

merely clarified the meaning of section 190.2—Banks and Clark

merely clarified the “major participant” and “reckless indifference 

to human life” principles that existed when defendant’s 

conviction became final. The Federal Constitution therefore 

requires reversal of the special circumstance finding against 

defendant, and the Attorney General’s procedural arguments can

be no match for the United States Constitution’s demands.

Felicitously, though, California law in fact stands in 

harmony with Federal due process principles. The decisions of 

the courts of this state invoked by the Attorney General—when 

correctly understood—pose no bar to relief.

What is known as the Waltreus rule7 provides that “legal 

claims that have previously been raised and rejected on direct 

appeal ordinarily cannot be reraised in a collateral attack by 

 

7

In re Waltreus (1965) 62 Cal.2d 218 (Waltreus).
25

filing a petition for a writ of habeas corpus.” (In re Reno (2012) 

55 Cal.4th 428, 476 (Reno).) The rule is venerable, but it has no 

application in the unusual circumstance here where our Supreme 

Court has revisited the meaning of a penal statute. Banks and 

Clark are correctly understood to have clarified the plain textual 

requirements of section 190.2 that have existed since the 

statute’s inception, and so understood, section 190.2 went

unsatisfied by the proof at defendant’s trial and the resulting

sentence must be vacated regardless of our prior determination of 

defendant’s appeal. We concede this view of Banks and Clark is 

subject to the criticism that it relies on what some have called a

legal fiction, namely, that our Supreme Court’s recent decisions 

declared (or, more colorfully, unearthed) the always-existing 

meaning of the statute. But years ago, in People v. Mutch (1971) 

4 Cal.3d 389 (Mutch), our Supreme Court rejected precisely that 

mode of criticism in favor of a result akin to the result we reach 

here.

The defendant in Mutch collaterally attacked the validity of 

his aggravated kidnapping convictions based on a case decided 

only after the convictions had become final, People v. Daniels

(1969) 71 Cal.2d 1119 (Daniels). Daniels construed the 

kidnapping statute of conviction to require proof of asportation 

that had not been adduced at Mutch’s trial, and our Supreme 

Court held his challenged convictions must accordingly be 

vacated. (Mutch, supra, 4 Cal.3d at pp. 393-394, 399.) The 

dissent in Mutch engaged in an extended discussion of common 

law retroactivity principles and criticized the result reached by 

the majority—believing it depended on the “fiction or myth” that 

a decision like Daniels that changed the prevailing 

understanding of the law was not “new law” but rather a 
26

discovery of what was, and theretofore had been, the true law. 

(Id. at p. 403 (dis. opn. of Burke, J.).)

The majority rejected the dissent’s view and explained 

Mutch was entitled to rely on Daniels without need of resorting to 

an analysis of whether the decision was “retroactive.” (Mutch, 

supra, 4 Cal.3d at p. 394.) In the majority’s view, Daniels “did 

not overturn a judge-made rule of common law” and “did not 

change any . . . evidentiary or procedural rules . . . .” (Id. at pp. 

394-395.) Rather, Daniels simply “recognized a statutory 

rule . . . to which courts had not previously given appropriate 

effect” (id. at p. 394); in other words, “‘what [Mutch] did was 

never proscribed under [the aggravated kidnapping statute]’” (id. 

at p. 396).8 The Mutch court accordingly held “finality for 

purposes of appeal [was] no bar to relief” because habeas corpus 

(and other extraordinary remedies) are available in a case where 

a court acts in excess of its jurisdiction by imposing a punishment

for conduct not prohibited by the relevant penal statute. (Mutch, 

supra, at p. 396.)

 

8 Our Supreme Court reiterated the same principle more 

recently in Woosley v. State of California (1992) 3 Cal.4th 758: 

“‘To determine whether a decision should be given retroactive 

effect, the California courts first undertake a threshold inquiry: 

does the decision establish a new rule of law? If it does, the new 

rule may or may not be retroactive . . . ; but if it does not, “no 

question of retroactivity arises,” because there is no material 

change in the law. [Citations.]’ [Citation.] An example of a 

decision which does not establish a new rule of law is one in 

which we give effect ‘to a statutory rule that the courts had 

theretofore misconstrued ([ ]Mutch[, supra,] 4 Cal.3d [at p.] 394) 

. . . .’ [Citations.]” (Id. at p. 794.)
27

Banks and Clark are the equivalent of Daniels in Mutch. 

For purposes of legal analysis, Banks and Clark did not create 

new law; they simply state what section 190.2, subdivision (d) 

has always meant. And that means defendant’s life without 

parole sentence was not authorized by section 190.2 and the 

Waltreus rule does not bar defendant’s habeas corpus claim.

Nor is defendant’s claim prohibited by the rule set forth in

Lindley9against permitting habeas corpus review of “routine 

claims that the evidence presented at trial was insufficient . . . .” 

(Reno, supra, 55 Cal.4th at p. 505.) In Lindley, a petitioner 

sought habeas corpus relief on the ground that various trial 

witnesses had lied under oath or lacked credibility. Our Supreme

Court found that while some of the testimony showed “serious 

conflicts and unexplainable discrepancies,” the evidence did not 

establish perjury. (Lindley, supra, 29 Cal.2d at p. 723.) Absent a 

finding of perjury, the existence of testimony that was “uncertain, 

questionable or directly in conflict with other testimony [did] not 

afford a ground for relief upon habeas corpus” because “all of 

[the] discrepancies and any probable falsehoods [in the 

testimony] relate[d] to issues of fact or matters of defense, and 

were, or could have been, brought to the attention of the jury.” 

(Id. at pp. 722, 724.)

Defendant’s claim that the evidence presented against him 

failed to support the robbery-murder special circumstance (and 

therefore a sentence of life without the possibility of parole) is not 

a “routine” claim of insufficient evidence as described in Lindley. 

His claim does not require resolution of disputed facts; the facts 

are a given, they are just legally insufficient under section 190.2 

 

9

In re Lindley (1947) 29 Cal.2d 709 (Lindley).
28

as elucidated in Banks and Clark. Defendant’s assertion of error, 

therefore, falls outside the limitation on insufficient evidence 

claims described in Lindley. (See In re Harris (1993) 5 Cal.4th 

813, 840-841 [habeas relief unavailable if the reviewing court 

must “reopen factual issues already sifted, evaluated, and 

decided at trial” but appropriate “where such review does not 

require a redetermination of the facts, and thus poses a strictly 

legal issue”].)

DISPOSITION

The petition for habeas corpus is granted. The true finding 

on the robbery-murder special circumstance allegation under 

section 190.2, subdivision (a)(17)(A) is vacated. The matter is 

remanded with directions to resentence defendant consistent

with the views expressed in this opinion.

CERTIFIED FOR PUBLICATION

BAKER, J.

We concur:

KRIEGLER, Acting P.J. LANDIN, J.

 



Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.