Error and/or relief
We affirm the judgment of conviction as to defendant A. We reverse defendant B’s count 1 felony murder conviction, and otherwise affirm his judgment. The People concede both abstracts of judgment must be amended; we agree and remand with directions. The People concede and we agree the abstracts of judgment erroneously state that the convictions in counts 2, 4, and 6 are for first degree robbery. Both defendants were charged with second degree robbery, and the juries were instructed only on that theory. There are several other errors in the abstracts of judgment that must be corrected.
First Holding:
When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.
Authority:
People v. Navarro (2021) 12 Cal.5th 285, 302
People v. Albillar (2010) 51 Cal.4th 47, 60
Second Holding:
Defendant A [the actual killer] contends there was no evidence he aided and abetted Defendant B in the count 6 robbery and count 7 assault. A person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. Mere presence at the scene of a crime or knowledge of, but failure to prevent the crime, are not sufficient to establish aiding and abetting its commission. However, factors which may be considered to determine aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense.
Authority:
People v. McCoy (2001) 25 Cal.4th 1111, 1117
People v. Hill (1998) 17 Cal.4th 800, 851
People v. Campbell (1994) 25 Cal.App.4th 402, 409
Third Holding:
Section 189(e) provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven: (1) The person was the actual killer. (2) The person, with the intent to kill, aided, abetted, or assisted the actual killer. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.
Authority:
PEN 189(e)
Fourth Holding:
There are several factors courts should consider in determining whether, under the totality of the circumstances, a defendant was a major participant in the underlying felony who acted with reckless indifference to human life: 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? Reckless indifference and the element of major participant significantly overlap, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.
Authority:
People v. Banks (2015) 61 Cal.4th 788, 803
People v. Clark (2016) 63 Cal.4th 522, 615
Fifth Holding:
Defendant B was not the actual killer, but was convicted on the basis of felony murder (item (3)). We need not decide whether, under the circumstances of this case, defendant was a major participant because we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life. The actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31. The special circumstance requires that the defendant be a major participant in the underlying felony.
Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder. The special circumstance requires that the defendant have reckless indifference to human life. A defendant’s knowing participation in a robbery with others who are armed is insufficient, without more, to prove the defendant acted with reckless indifference to human life. Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient, because a defendant must knowingly create a grave risk of death through the defendant’s own actions. Reckless indifference 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 the defendant’s actions. Reckless indifference to human life has both a subjective and an objective element.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 615-617
People v. Banks (2015) 61 Cal.4th 788, 794, 807-810
People v. Strong (2022) 13 Cal.5th 698, 706
In re Scoggins (2020) 9 Cal.5th 667, 677
Sixth Holding:
In committing the count 1 felony robbery, Defendant A entered the convenience store alone, and therefore Defendant B had no opportunity to restrain him, or to aid the victim. The evidence does not prove beyond a reasonable doubt that Defendant B was aware, when they left the third convenience store, that Defendant A had killed the victim. This factor weighs against a finding of reckless indifference. Defendant B had no meaningful opportunity to aid the victim before the shooting.
However contemptible the court may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed. It requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed. Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability. While it is true 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, no evidence was presented at trial that Defendant A was known to have a propensity for violence, let alone evidence indicating that Defendant B was aware of such a propensity.
Authority:
People v. Emanuel (2025) 17 Cal.5th 867, 894-895
Tison v. Arizona (1987) 481 U.S. 137, 157
Seventh Holding:
The abstracts of judgment contain several errors that must be corrected. The abstracts of judgment erroneously state that the convictions in three counts are for first degree robbery. The verdict forms do not specify the degree of the robberies. But under California law, upon the failure of the jury or the court to determine the degree of the crime of which the defendant is guilty, it shall be deemed to be of the lesser degree. Therefore, we conclude that the robberies in the three counts are in the second degree.
The jury convicted both defendants of being a felon in possession of a firearm and not a “convicted felon and narcotic” as stated in the abstracts of judgment. As to Defendant A, the abstract of judgment shows the court imposed a consecutive full term of three years for one of the counts. However, the court orally stated, “Under [that count], the court is going to use one-third the midterm for that charge of one year, and that will run consecutive to the determinate terms under [two other counts].” Given this discrepancy, the oral pronouncement of judgment controls.
Authority:
PEN 1157
People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.
