Opinion
B321006
03-02-2023
THE PEOPLE, Plaintiff and Respondent, v. PATRICK CARR, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A923178, Laura C. Ellison, Judge. Reversed.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
This is an appeal from the trial court's denial of petitioner Patrick Carr's Penal Code section 1172.6 resentencing petition.Carr participated in an armed robbery with four other men. The five confederates left the scene of the robbery in three different cars. A police sergeant pursued one of the cars, and one of Carr's confederates shot and killed the sergeant, who was driving an unmarked vehicle. Carr was not in the vehicle the police sergeant pursued and was not at the scene of the shooting. In June 1988, the People charged Carr and two codefendants of robbery and murder. Carr pleaded guilty to second degree murder, and the trial court sentenced him to an indeterminate term of 15 years to life.
Undesignated statutory references are to the Penal Code. Section 1172.6 originally was codified as section 1170.95. The statute was later amended and then renumbered without substantive change, effective June 30, 2022. (People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).) We refer consistently to section 1172.6 even though it postdates several events occurring in this case.
Initially, the trial court denied Carr's resentencing petition without holding a hearing. This court reversed the order, and the trial court held a hearing and again denied his petition. The trial court found that Carr could be convicted of murder under current law because Carr was a major participant in the robbery and acted with reckless indifference to human life. We conclude no substantial evidence supports the trial court's finding that Carr acted with reckless indifference to human life. We reverse the trial court's order denying Carr's resentencing petition and remand the case to the trial court to vacate Carr's murder conviction and resentence him.
FACTUAL BACKGROUND
At the outset, we note that the parties agreed to the evidence the trial court could consider in determining whether Carr was eligible for relief under section 1172.6. Specifically, the parties stipulated that evidence at Carr's preliminary hearing, Carr's testimony at his confederate's jury trial, and Carr's statements to police on April 1 and April 5, 1988 were admissible. We reject respondent's implicit argument that the factual background described in People v. Elster et al. (May 6, 1992, B047207) [nonpub. opn.], the trial of two of Carr's confederates, also is admissible. The Legislature has limited the admissible portions of an appellate opinion to its discussion of a case's procedural history. (§ 1172.6, subd. (d)(3).)
Section 1172.6, subdivision (d)(3) provides: "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges."
Our factual summary is thus based on this stipulated evidence. That evidence demonstrates that Carr participated in a robbery with Joevone Elster, Van Otis Wilson, Leslie Holget, and another person referred to as Baby Cookie. Holget shot and killed a police sergeant, George Aguilar, who followed Holget and Wilson in an unmarked police car. Masih Madani was the courier of cash, whom Carr and his confederates robbed.
1. Preliminary hearing
At the June 1988 preliminary hearing, the parties stipulated that Aguilar died of a gunshot wound to the chest.
Madani testified that he worked as a bookkeeper for his brother's service stations and was responsible for collecting cash from the service stations. Carr's confederate, Elster, previously worked at the service station at the corner of Manchester and Western (sometimes referred to as the Manchester station). On March 31, 1988, Madani picked up cash from the Manchester station and put it in the hatchback area of his car. Shortly afterwards, as Madani was driving away from the Manchester station, a maroon Ford cut in front of Madani's car. Wilson exited the maroon Ford and pointed a gun at Madani. Wilson asked," 'Where is the money?'" Another person armed with a revolver (later identified as Holget) approached Madani. Madani got out of his car and Wilson entered it and sped away. Madani had approximately $2,000 in cash in the hatchback area of his car.
About two seconds later Aguilar, stopped his vehicle-an unmarked police vehicle-and picked up Madani. Aguilar pursued Madani's vehicle, caught up to it, and asked Madani to hand him his gun. Madani heard Aguilar shout, "Police officer." Madani then heard three shots, one of which hit Aguilar.
Lamont Wade testified under a grant of immunity from the prosecution. Wade knew Wilson and Elster for a long time. On March 28, 1988, Wade saw Elster and Wilson. Elster told Wade about a robbery Elster was planning. On March 28, 1988, Wade joined Wilson and Elster for the purpose of committing a robbery of a gas station courier. The robbery was aborted for unspecified reasons. On March 30, 1988, Wade again accompanied Wilson and Elser to commit a robbery. The three followed the courier after the courier retrieved a white bag. The planned robbery was again aborted for unspecified reasons. Wade told Elster and Wilson that he did not want to participate in the robbery. On March 31, 1988, Wade saw Elster and Wilson again. Wade did not know Carr and did not know if Carr was present. Wade saw someone he knew as Baby Cookie with Wilson and Elster.
Wilson's older brother, Anthony Wilson (Anthony), testified that Wilson's girlfriend owned a red or burgundy Ford. On March 31, 1988 (the day Madani was robbed), Elster told Anthony he was looking for the money and was expecting approximately $30,000.
Donnell Cotterell testified that he knew Carr, Elster, and Holget. Holget drove a blue Ford Grenada. On March 31, 1988, Carr picked up a firearm that he stored at Cotterell's apartment. Cotterell did not know whether the gun was loaded. Cotterell saw Wade leave with Holget. Elster followed them. Elster said, "[T]hey all messed up because that was not the way it was planned." "And if a police officer got shot, it's not going to go lightly."
Sheriff investigator George Roberts spoke to Carr on April 1, 1988. Carr admitted "that he became involved in the robbery of the courier of the Shell gas station." After Madani drove up to the service station, Elster told the group "they were going to pull the robbery on the street." Carr told Investigator Roberts: "[T]he red car stopped in front of the courier's car. The blue vehicle . . . driven by Leslie Holget . . . stopped behind the courier's vehicle, . . . boxing him [the courier] in." "Wilson got out of the front vehicle, which he was driving, the red car, and approached the . . . courier, with his [Wilson's] gun. Also Leslie Holget, who was driving the blue vehicle, got out of his vehicle and approached the victim with his gun." Either Wilson or Holget drove away in the courier's car. Carr reported that he, Holget, and Wilson all were armed. After the robbery, Carr "was in the blue Ford Grenada, which was driven away from the location of the robbery by Joevone Elster ...." Carr was one or two miles away from the shooting at the time of the shooting.
2. Carr's April 1, 1988 statement
On April 1, 1988, Sergeant Ed Milkey and Detective George Roberts interviewed Carr. Carr indicated that Elster planned the robbery and knew the courier. Carr stated that he took his gun for "[p]ersonal protection." Holget had a gun. The group watched the service station "[f]or hours." After the courier came, Elster said that the group would take the money on the street. The group planned to take the money from the courier's car, leave the car, and drive away with Baby Cookie. Carr was supposed to follow the courier's car, but he turned in the opposite direction because he "didn't like the scene." Carr did not see the black car (driven by Aguilar) chase the courier's Acura. Carr went home and took a shower and then returned to the area of the robbery.
After Carr left the area of the robbery, he met up with Holget. Holget told Carr that "he [Holget] got chased by a black Trans AM" and when the black car pulled alongside him, Holget "fired a shot." The man in the black car was waiving a gun; Holget did not know "if it was the police ...." Carr did not know how much planning took place prior to the robbery because "they just came and got me." Carr's gun was loaded but he did not shoot it. Holget and Wilson were the only persons in the car Aguilar followed, and Holget said he fired the shot.
3. Carr's April 5, 1988 interview
In a second interview, Carr told officers Elster told Carr that he intended to rob a service station and knew when the money would be picked up from the station. A courier would pick up the money in a blue car. On the day of the robbery, Holget drove Carr and Elster drove separately. Then Wilson and Baby Cookie arrived in a red Ford. Elster later moved to the front seat of Holget's car and Carr sat in the backseat. Wilson and Holget both had a gun. Baby Cookie did not have a gun.
At the intersection of Eucalyptus and Manchester, Wilson pulled in front of the courier's car and Holget pulled behind so the courier was "boxed in." Wilson exited the vehicle and approached the courier with his gun. After the courier exited the vehicle, Holget drove the courier's vehicle and Wilson sat in the passenger seat. Elster and Carr drove northbound. The other cars drove southbound. Carr did not know what happened. Carr later returned to the scene of the robbery and noticed police activity. Carr told officers that he took his gun to protect himself. Carr stated he and his confederates did not discuss a "shoot out." Carr agreed when asked if Holget "gets kind of cornered, he'll shoot." When asked by officers, Carr agreed Holget was "hot tempered." When asked if Holget had shot in the past, Carr responded, "No[t] that I know of." Carr reported the shooting "wasn't supposed to happen."
4. Carr's testimony at Wilson and Elster's trial
Carr testified at Wilson and Elster's trial. He stated that he had known Holget for a couple years. He further testified that on the night before the robbery, Holget told Carr Elster was planning a robbery and Holget wanted Carr to "watch his back." The group planned to rob a gas station where Elster formerly worked.
The next day, Holget, Elster, and Carr went in Holget's vehicle to Western and Manchester. Carr sat in the backseat and carried a gun. Carr testified Holget and Wilson also had guns. Carr also testified that the group planned to rob the courier in the parking lot. As they waited for the courier, Wilson and someone Carr knew as "Baby Cookie" drove up. Carr asked Elster why Wilson and Baby Cookie were participating in the robbery, and Elster reassured Carr," 'There is enough funds for everyone.' "
After they waited a while, Carr "want[ed] out" but he stayed because he "was supposed[d] to watch [Holget's] back." Holget persuaded Carr to stay.
The group had planned to rob the courier inside the gas station but "[i]t just didn't happen" that way. Eventually, the group saw the courier drive off, and Elster said," 'Follow that car.'" The group started to "chase the c[ou]rier down Manchester [Avenue]." Elster was driving one car and Wilson was driving the other.
The group was able to cut off the courier; Holget and Wilson exited their vehicles. Holget and Wilson both brandished firearms and ordered the courier out of his car. Holget jumped into the driver's seat of the courier's car and Wilson jumped into the passenger seat. They then drove away with Holget turning left and Elster, who was driving with Carr, turning in the opposite direction. Carr understood he would receive 10 percent of the proceeds from the robbery.
5. Carr's section 1172.6 petition for resentencing
On March 30, 2020, Carr filed a section 1172.6 petition for resentencing. Carr alleged that he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Carr also alleged he was not a major participant in the felony and did not act with reckless indifference to human life during the course of the crime or felony.
6. After an 1172.6, subdivision(d)(3) hearing the court denies Carr's petition
After holding a section 1172.6, subdivision (d)(3) hearing, at which neither party presented new evidence, the trial court denied Carr's petition for resentencing. The court found that Carr was a major participant who acted with reckless indifference to human life. The court emphasized that Carr and his confederates were armed. Carr participated in planning the robbery and knew that Holget "would shoot if things got bad." When Carr left the scene of the robbery, "he could see that a gun was being pointed at a robbery victim. He was ready and able to help during that portion of it, and then he drove away, and then he returned" to the scene of the homicide.
DISCUSSION
A. Legal Principles
Senate Bill No. 1437 amended Penal Code section 189 to provide that a defendant who was not the actual killer or did not have an intent to kill is not liable for felony murder unless he "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(3); Stats. 2018, ch. 1015, § 3; Strong, supra, 13 Cal.5th at p. 703.) Section 190.2, subdivision (d) provides: "[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony [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 ...." (§ 190.2, subd. (d).) The newly narrowed scope of felony murder is based on "preexisting law governing felony-murder special-circumstance findings . . . to determine whether the defendant may be sentenced to death or life without possibility of parole." (Strong, at p. 703.)
Section 190.2 codified the rule announced in Tison v. Arizona (1987) 481 U.S. 137 (Tison). (People v. Clark (2016) 63 Cal.4th 522, 616 (Clark).) Both Tison and a prior United States Supreme Court case, Enmund v. Florida (1982) 458 U.S. 782 (Enmund), permit imposition of the death penalty for a felony murder when a defendant's involvement is substantial and demonstrates a reckless indifference to the risk of death. The two cases "help define the constitutional limits for punishing accomplices to felony murder." (In re Loza (2017) 10 Cal.App.5th 38, 46.) "At one end of this Enmund-Tison continuum is' "the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state." [Citation.]' [Citation.] At the other end are the 'actual killers and those who attempted or intended to kill. [Citation.]' [Citation.] 'Somewhere between them . . . lies the constitutional minimum' showing required for the imposition of death or life without the possibility of parole." (Ibid.) That constitutional minimum is the standard now incorporated into the definition of felony murder. (§ 189.)
Our high court in People v. Banks (2015) 61 Cal.4th 788, 799 (Banks) described the salient facts in Enmund as follows: The defendant learned that a man "was in the habit of carrying large sums of cash on his person. A few weeks later, [the defendant] drove two armed confederates to [the man's] house and waited nearby while they entered. When [the man's] wife appeared with a gun, the confederates shot and killed [the couple]. [The defendant] thereafter drove his confederates away from the scene and helped dispose of the murder weapons, which were never found." (Banks, at p. 799.) Banks further explained that the United States Supreme Court in Enmund reversed the death sentence, concluding that the Eighth Amendment barred such punishment "for any felony-murder aider and abettor 'who does not himself [or herself] kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.' [Citation.]" (Banks, at p. 799.)
The facts of Tison demonstrated a more culpable mental state than that harbored by the defendant in Enmund. In Tison, in an effort to help Gary Tison escape prison, the Tison family including sons Raymond and Ricky "assembled a large arsenal of weapons." (Tison, supra, 481 U.S. at p. 139.) Family members entered the prison carrying an ice chest filled with guns. (Ibid.) They armed Gary Tison and his cellmate and left the prison. (Ibid.) Gary Tison and his cellmate "brutally murder[ed]" four "captives" who had stopped to try to aid the Tison family with a flat tire. (Id. at p. 141.) "Neither [Raymond nor Ricky] made an effort to help the victims, though both later stated they were surprised by the shooting." (Ibid.) Raymond and Ricky were convicted of felony murder for all four murders. (Ibid.) The United States Supreme Court upheld the death sentence, finding Raymond and Ricky showed reckless indifference to human life. (Id. at p. 152.) The high court reasoned that Raymond Tison was prepared to kill in furtherance of the prison break, flagged down the victims to assist with the flat tire, robbed the victims and guarded them at gunpoint while the group considered their fate. Raymond "stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. (Id. at p. 151.) "Instead, he chose to assist the killers in their continuing criminal endeavors ...." (Ibid.) Similarly, Ricky Tison brought guns into the prison to arm the prisoners, participated in the kidnapping and robbery, and watched the killing without aiding the victims. (Id. at p. 152.)
Our high court applied Enmund and Tison in Banks, supra, 61 Cal.4th 788. Defendant Matthews "acted as a getaway driver for an armed robbery in which Leon Banks and others participated." (Id. at p. 794.) "In the course of escaping, Banks shot one of the robbery victims." (Ibid.) Matthews and two of his confederates were gang members, but Banks was not a gang member. (Id. at pp. 795-796.) Although the gang's primary activities included shootings, attempted murders and murders, "[n]o evidence was presented that Matthews" or his fellow gang members "had killed before, or that Matthews knew any of the three had killed before." (Id. at p. 796.)
Our Supreme Court reversed the felony murder special circumstance, finding Matthews no more culpable than the getaway driver in Enmund. (Banks, supra, 61 Cal.4th at p. 794.) Our Supreme Court emphasized 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." (Id. at p. 802.) "Matthews, like Enmund and unlike the Tisons, did not see the shooting happen, did not have reason to know it was going to happen, and could not do anything to stop the shooting or render assistance." (Id. at p. 807.) Although Matthews knew he was participating in an armed robbery "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." (Ibid.)
Subsequent to Enmund and Tison, courts have refined the meaning of reckless indifference to human life." '[T]he culpable mental state of "reckless indifference to life" is one in which the defendant "knowingly engag[es] in criminal activities known to carry a grave risk of death" [citation] ....' [Citation.]" (In re Bennett (2018) 26 Cal.App.5th 1002, 1021.) Where these factors identify nothing that "elevated the risk to human life beyond those risks inherent in any armed robbery" the defendant did not act with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 623.) Our high court explained in Clark that the mental state comprising 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 his [or her] actions." (Clark, at pp. 616-617.) The required intent has "both subjective and objective elements. The subjective element is the defendant's conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by . . . what 'a law-abiding person would observe in the actor's situation.' [Citation.]" (Id. at p. 617.)
The following nonexclusive factors are relevant to consider whether defendant acted with reckless indifference to human life: (1) the defendant's knowledge of weapons and use of a weapon even if the defendant did not kill the victim; (2) the defendant's presence at the scene of the crime and failure to aid the victim; (3) the duration of the felony; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) the defendant's efforts to minimize risk of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-623.) No single factor is" 'necessary'" or" 'necessarily sufficient.'" (In re Bennett, supra, 26 Cal.App.5th at p. 1019.)
" '[T]he fact a participant [or planner of] an armed robbery could anticipate lethal force might be used' is not sufficient to establish reckless indifference to human life." (In re Scoggins (2020) 9 Cal.5th 667, 677, quoting Banks, supra, 61 Cal.4th at p. 808.) "The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed," and must then consciously disregard "the significant risk of death his or her actions create." (Banks, at p. 801.) A defendant's actions "after a murder betraying an indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death." (In re Taylor (2019) 34 Cal.App.5th 543, 546-547.)
B. No Substantial Evidence Supports the Finding that Carr Acted With Reckless Indifference to Human Life
We review the trial court's finding that Carr acted with reckless indifference to human life for substantial evidence. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 125.) "We must 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (Ibid.)
Here, the evidence shows that Carr was armed and planned to participate in a robbery with armed confederates Wilson and Holget. When asked by officers if Carr knew Holget was hot tempered, Carr answered affirmatively. When asked by officers if Holget "gets kind of cornered, he'll shoot," Carr answered affirmatively. When asked, "So you just know that he's hot tempered and he would pull a gun and shoot," Carr agreed. When asked if Carr discussed a shooting with Holget, Carr responded, "No. Ain't don't talk like that." When asked whether Holget said "if anybody screws up or anything happens, I'm gonna . . . shoot," Carr answered negatively. When asked, "[A]nd everything was supposed to go down as just strictly a robbery," Carr answered affirmatively. When asked if Holget had shot in the past, Carr responded, "No[t] that I know of."
Evidence that Carr was aware the robbery would involve armed assailants, without more does not demonstrate reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 613.) According to our Supreme Court: "[A]ny person who plans or participates in an armed robbery can be said to anticipate that lethal violence might be used, given that 'roughly 1 in 200 [armed robberies] results in death.' [Citation.] But that fact, without more, does not establish reckless indifference to human life."(In re Scoggins, supra, 9 Cal.5th at p. 682; Banks, supra, 61 Cal.4th at p. 808 ["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'" is sufficient.].)
Respondent emphasizes that Carr was armed and knew two of his confederates were armed. Consistent with our high court's jurisprudence, however, respondent does not argue that factor alone supports a finding of reckless indifference to human life.
Carr's knowledge that Holget was "hot tempered" and that Holget would shoot if cornered must be considered under a totality of the circumstances. (See In re Scoggins, supra, 9 Cal.5th at p. 677 [applying a totality of the circumstances test to assess reckless indifference to human life].) That being said, the following undisputed evidence supports only the conclusion that under a totality of circumstances, Carr did not harbor reckless indifference. Even though Holget was "hot tempered" no evidence showed that Carr or his confederates including Holget had participated in prior shootings, murders, or attempted murders. Carr did not wield his gun during the robbery or shooting. Carr was not present while Aguilar followed Holget and Wilson, and Carr was at least a mile away from the shooting. Because Carr was not at the scene of the shooting, he was not in a position to restrain Holget or even to observe Holget's mental state. Carr, unaware that Aguilar pursued Holget or that Aguilar was shot, could not have assisted Aguilar. There was no evidence that Carr instructed Holget to shoot any intervening bystander and no evidence that Carr was aware Holget previously had shot anyone. Additionally, there was no "prolonged restraint" of either Madani or Aguilar that would suggest"' "a greater window of opportunity for violence" [citation], ....' [Citation.]" (In re Scoggins, supra, 9 Cal.5th at p. 680.) The short duration of the robbery and unexpected nature of the shooting support the conclusion that Carr did not act with reckless indifference to human life. (In re Moore (2021) 68 Cal.App.5th 434, 452.)
In sum, viewed in its totality, the evidence is insufficient to support the finding that Carr acted with reckless indifference to human life. (See In re Bennett, supra, 26 Cal.App.5th at p. 1026 [under a totality of the circumstances a defendant who was not present when the shots were fired, was not in a position to prevent the actual murder, had no reason to know the shooting happened did not act with reckless indifference to human life]; In re Ramirez (2019) 32 Cal.App.5th 384, 404 [no substantial evidence of reckless indifference where there was no evidence that killing was contemplated in course of attempted robbery; no evidence that defendant planned anything other than a group robbery; and no evidence that defendant was close enough to restrain killer].)
The facts of this case resemble those of Banks, supra, 61 Cal.4th 788, where our high court found no substantial evidence to support the felony murder special circumstance. The shooting occurred as a result of a "spontaneous response" to Aguilar following Holget. (Id. at p. 807.) Like Matthews (the defendant in Banks), Carr had no knowledge that Holget previously shot or killed anyone. Like Matthews, Carr "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." (Ibid.)
Respondent resists the conclusion that Carr did not act with reckless indifference to human life with unmeritorious arguments. Respondent states that the evidence shows Carr "was willing to use his gun should the need arise." Respondent cites no evidence supporting that assertion, and we find none. There was no evidence that Carr planned to shoot anyone in the course of the robbery and Carr did not use his gun in the course of the robbery or the murder. The absence of anything in the criminal "plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery" supports the conclusion that Carr did not act with reckless indifference. (Clark, supra, 63 Cal.4th at p. 623.)
Along the same lines, respondent implies that Carr was aware of the "likelihood of killing" because Carr and his accomplices "discussed the crime in detail" and were armed. But the evidence shows only that Carr discussed the robbery. Respondent cites no evidence that Carr discussed or even contemplated a shooting. Although "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," such as" 'the manufacture and planting of a live bomb,'" armed robbery is not among them. (Clark, supra, 63 Cal.4th at p. 615.)
Respondent further asserts that Carr was "in a position to act as a 'restraining influence' on his cohorts but instead cho[se] to allow and participate in the violence ...." The assertion is not tethered to the evidence because Carr was not at the scene of the shooting, could not have restrained Holget, and was unaware that Aguilar was pursuing Holget.
Respondent states that Carr was "actively involved" after the robbery. Respondent cites no evidence to support that assertion. The evidence shows that Carr turned in the opposite direction from Holget and was not present for, or involved in the shooting of Aguilar.
Respondent acknowledges that the robbery was "relatively brief" but asserts that the robbery could have taken longer and could have been more violent. The argument does not support the conclusion that Carr acted with reckless indifference to human life. It militates against that finding because there was no prolonged period for Carr to contemplate a killing or intervene to stop it.
Finally, we reject respondent's argument that this case more closely resembles Tison rather than Enmund. In contrast to Raymond Tison, here (1) there was no evidence that Carr was prepared to kill in furtherance of the robbery; (2) unlike Raymond Tison, Carr played a minimal role during the robbery and did not exit the vehicle; (3) Carr was not present when Aguilar followed Holget and was not privy to any plan to shoot Aguilar; and (4) Carr did not watch the killing and was not in a position to aid the victim. Indeed, Carr had less of a role in aiding Holget than the defendant in Enmund who drove the shooters away from the scene of the shooting. (Enmund, supra, 458 U.S. at p. 788.) In short, under the applicable case law, no substantial evidence supports the finding that Carr acted with reckless indifference to human life.
Because we reverse the trial court's order for lack of sufficient evidence, we need not consider Carr's argument that he was not a major participant in the robbery or his claim that his trial counsel rendered ineffective assistance of counsel.
Section 1172.6 subdivision (e) provides: "The petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged. Any applicable statute of limitations shall not be a bar to the court's redesignation of the offense for this purpose." Carr argues that this statute applies to him. He requests: "[T]he trial court's judgment should be reversed based on insufficiency of the evidence, and the case remanded for resentencing pursuant to section 1172.6, subdivision (e). We therefore remand for resentencing. The trial court shall redesignate Carr's murder conviction as a conviction for robbery. (See People v. Arellano (2022) 86 Cal.App.5th 418, 432-437 [regardless of whether petitioner was charged with underlying felony, trial court that vacates murder conviction pursuant to section 1172.6 may resentence petitioner on underlying felony].)
DISPOSITION
The order denying Patrick Carr's Penal Code section 1172.6 motion for resentencing is reversed. The case is remanded to the trial court to vacate Carr's murder conviction and resentence him accordingly.
We concur: ROTHSCHILD, P. J., CHANEY, J.