Opinion
E075760
06-10-2021
In re EDWARD WHITE, JR., on Habeas Corpus.
Edward White, Jr., in pro. per.; Lynda A. Romero, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Nos. FWV024044 & WCHJS2000345 Gregory S. Tavill. Petition granted.
Edward White, Jr., in pro. per.; Lynda A. Romero, under appointment by the Court of Appeal, for Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Respondent.
OPINION
MENETREZ J.
In 2000, petitioner Edward White, Jr., was the getaway driver for an armed bank robbery in which an armored car guard was killed. White was convicted of first degree murder with robbery-murder and burglary-murder special circumstances and was sentenced to life without the possibility of parole. His conviction and sentence were affirmed on direct appeal. White has now filed a petition for writ of habeas corpus seeking to vacate his life sentence. Penal Code section 190.2, subdivision (d), authorizes such a sentence for “a major participant” in a felony murder who acts with “reckless indifference to human life.” (Unlabeled statutory citations are to the Penal Code.) White argues that the evidence was insufficient to establish the truth of the robbery-murder and burglary-murder special circumstances as required by section 190.2, subdivision (d). He relies on two recent California Supreme Court cases construing the special circumstances, People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). We agree with White and grant his petition.
BACKGROUND
The following facts are taken from this court's prior unpublished opinion on White's direct appeal, People v. White (Dec. 29, 2004, E034088), and the record in that appeal. (See In re Taylor (2019) 34 Cal.App.5th 543, 556-557 (Taylor) [considering factual discussion in opinion from direct appeal and “other germane parts of the record” from that appeal].) We describe only those facts relevant to the robbery-murder and burglary-murder special circumstance findings.
On our own motion, we take judicial notice of the record from White's direct appeal and the record from a previous habeas petition White filed in this court in 2017, In re White, E068047. (Evid. Code, §§ 452, subd. (d), 459, subd. (d).) Pursuant to Evidence Code section 459, subdivisions (c) and (d), we notified the parties that we proposed to take judicial notice of those records, and they did not object. We also grant White's unopposed request for judicial notice of the record from White's recent appeal from the denial of a section 1170.95 petition, People v. White, supra, E073080. (Evid. Code, § 452, subd. (d).)
Shortly after 10:00 a.m. on October 30, 2000, an armored car guard arrived at the Bank of America in Ontario, California. He and two bank employees entered the security vault to exchange currency and deposits. Around the same time, a bank employee was preparing to leave the bank and noticed a man near the vault using one of the bank's courtesy phones and looking left and right. The man stood there for approximately two minutes. The employee also noticed the armored car guard enter the vault area. The employee left the building before the guard exited the vault. As the employee was driving away from the bank and preparing to merge with traffic, she saw someone exit the bank and get into a blue-green car parked in the bank's parking lot. The car sped away and almost collided with the employee's car.
The armored car guard exited the vault while pushing a cart with a large bank bag containing cash and other bank notes. After the guard exited the vault, Joe Abbot, an African-American man disguised as an elderly White man, quickly walked up to the guard from behind and shot him several times in the back of the head. The guard fell to the floor. Abbott grabbed the bank bag and started to leave. The guard moved, and Abbott shot him “execution style” in the left temple, which resulted in the guard's death. Abbott then ran out of the bank carrying the bank bag, which contained over $300,000 in cash and checks. One witness who was driving toward the bank saw a man exit the bank holding a bag in one hand and a gun in the other hand.
Another man, whom witnesses variously described as Hispanic, dark-skinned, and African-American, waited outside the bank in a blue-green sedan. White is African-American. Abbott placed the bag in the car and then entered the passenger side. The driver and Abbott fled. A witness was certain that the driver and Abbott were laughing as they drove away, but the witness could not hear what they were saying. The blue-green sedan was found three to four blocks away from the bank.
The day after the robbery, a law enforcement officer recovered the bank bag from a motel. A motel maintenance employee had found the bag, which contained checks, in a trash can. The front desk clerk identified Abbott as a motel guest who paid his bill in cash. Abbott's fingerprints and those of his girlfriend were found on items in the trash can.
Further investigation revealed that Lenard Wilkes also was involved in the robbery. Wilkes pled guilty to various offenses and testified for the prosecution. Wilkes said that he, Abbott, and White had been friends for approximately 15 years. In October 2000, Wilkes drove Abbott to the Bank of America and two nearby residential locations. When Abbott and Wilkes drove past the bank, Abbott did not “really say there was a robbery taking place” but instead “said they were slipping.” Wilkes was not asked the meaning of “slipping” but otherwise testified that he knew that Abbott planned to rob the bank. Wilkes did not provide any detail about how Abbott planned to rob the bank.
Wilkes eventually learned that Abbott expected Wilkes to meet Abbott at the residential locations before and after the robbery. Abbott told Wilkes that someone named Brenda also would be participating in the robbery. Some unspecified time before the day of the robbery, Abbott told Wilkes that White also “was going to participate in this driving around.” Wilkes did not meet with White in the month before the robbery.
Shortly after 8:00 a.m. on the day of the robbery, Wilkes met Abbott and White at one of the prearranged residential locations. Wilkes waited in a parked car. Abbott and White drove up in a gold car. White was driving. White's sister told law enforcement officers that she had loaned White her tan-colored sedan the night before, and he returned it to her late in the evening on the day of the robbery. At the residential location, Abbott exited the gold car and got into a green car that was already parked there. White stayed in the gold car. Abbott drove the green car to another residential location several blocks away from the bank. White and Wilkes followed in separate cars and parked at the new location. White exited the gold car and got into the green car with Abbott. White and Abbott then left while Wilkes remained and waited for them to return. Wilkes was uncertain of the amount of time that passed but thought that he waited for approximately one hour or longer.
Approximately one hour later, White and Abbott returned in the green car. White was driving, and Abbott was in the passenger seat. Both men exited the green car. Abbott tossed two bags into Wilkes's car and got into the gold car that White had parked there. Wilkes and Abbott then drove away in separate cars to a nearby home where relatives of Abbott's girlfriend lived. White drove away to some other destination. At Abbott's girlfriend's family's house, Abbott took the bags from Wilkes's car into the house and put the cash in a trash bag. The next day, Wilkes met Abbot at a motel, and Abbott gave Wilkes $5,000.
Abbott's girlfriend also testified for the prosecution after pleading guilty to being an accessory. She rented a motel room at Abbott's direction. At approximately noon on the day of the robbery, Abbott arrived at the motel room. He brought a plastic trash bag containing cash. Abbott did not tell his girlfriend where he got the money. Later that evening, White arrived at the motel room. White and Abbott left the room together. White did not return to the room. Abbott returned approximately one or two hours later.
Brenda Maza also assisted with the robbery and testified for the prosecution after pleading guilty to being an accessory. Maza knew White and Abbott. In late September 2000, Abbott told Maza that he wanted her assistance in robbing the Bank of America and that he wanted to look like a different person for the robbery. Several weeks before the robbery, Maza supplied Abbott with the contact information for a makeup artist. Abbott also told Maza two different versions of how he intended to carry out the robbery. Abbott first told Maza that he planned to enter “a side door when somebody exited and go to a side room and take the money and leave.” Abbott later said that “he would be able to go in unnoticed and he would rob the guard when they were bringing in the money.” Abbott explained that he was going to “dome” the guard, which Maza understood to mean that Abbott was going to kill the guard. Maza knew that it was possible that Abbott would kill someone during the robbery.
Abbott offered to pay Maza to park her car on a street in the neighborhood of the bank on the day of the robbery and wait for him. On the morning of the robbery, Maza refused to help Abbott go to the bank. In the two weeks after the robbery, Maza drove Abbott to hotels where he was hiding, purchased a safe for him, and rented a storage facility for him.
Approximately two weeks after the robbery, Abbott turned himself in to law enforcement. The media was reporting that law enforcement was looking for White. After Abbott turned himself in, Maza drove White around, knowing that the police were looking for him.
In mid-November 2000, White called a law enforcement officer he knew. White told that officer that he had not been involved in the crimes. Approximately one week after Abbott turned himself in, White met with the officer and was arrested. He denied having any knowledge about either the robbery or the murder. When White was arrested, he had a black bag containing over $2,400 in $20 bills and a diamond ring in a box with a receipt showing that the ring had cost $1,062.17. The clerk who sold White the ring testified that he paid for the ring with $20 bills.
Abbott's phone records showed 17 calls placed to White's cell phone or pager on October 29, 30, and 31, 2000. Seven of the calls were made on the day of the robbery. Those calls totaled over 10 minutes and ranged from about 20 to 90 seconds. Two calls were made from White's residence to Abbott's phone at 6:55 a.m. on the day of the robbery. Those calls lasted approximately 25 and 90 seconds. At trial, White claimed that he could not recall the contents of the conversations. White denied involvement in the robbery, claiming that he was with others when the robbery took place.
In 2003, a jury convicted White of first degree murder (§ 187, subd. (a)) and robbery (§ 211). It also found true the special circumstance allegations that the murder was committed during a robbery and a burglary (§ 190.2, subd. (a)(17)) and the enhancement that a principal was armed during the commission of the offense (§ 12022, subd. (a)(1)). The jury further found true that White suffered two prior strike convictions and two prison priors. (§§ 667, subds. (b)-(i), 667.5, 1170.12, subds. (a)-(d).) White was sentenced to life imprisonment without the possibility of parole plus 55 years to life.
DISCUSSION
Murder committed in the perpetration of a robbery or a burglary is first degree murder. (§ 189, subd. (a).) Once convicted of first degree murder, an accomplice who was “not the actual killer” may be sentenced to life without the possibility of parole if a special circumstance is true. (§ 190.2, subds. (c), (d).) As relevant here, the accomplice must be “a major participant” in the robbery or the burglary who acted “with reckless indifference to human life.” (§ 190.2, subds. (d), (a)(17)(A), (G); Banks, supra, 61 Cal.4th at p. 798.) The law “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, at p. 798.) The requirements significantly overlap, because the greater the accomplice's participation, the more likely that the accomplice acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 615.)
White argues that the evidence admitted at his trial was insufficient under Banks and Clark to support the major participant and reckless indifference requirements of the special circumstance findings. In Banks, our Supreme Court identified factors for determining whether an accomplice was a major participant. (Banks, supra, 61 Cal.4th at pp. 794, 803.) In Clark, the Court set forth factors for assessing whether the accomplice acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-623.)
We apply the substantial evidence standard of review to assess White's claim. (Clark, supra, 63 Cal.4th at p. 610.) We ask “whether, when evidence that is reasonable, credible, and of solid value is viewed ‘in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [special circumstance] beyond a reasonable doubt.'” (Ibid.) “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.” (Ibid.)
We conclude that there was insufficient evidence that White exhibited reckless indifference to human life. We therefore need not and do not assess whether there was sufficient evidence that White was a major participant. (Clark, supra, 63 Cal.4th at p. 614 [declining to decide whether there was sufficient evidence that the defendant was a major participant because the evidence was insufficient to support the finding that the defendant “exhibited reckless indifference to human life”]; Taylor, supra, 34 Cal.App.5th at p. 557 [same]; In re Miller (2017) 14 Cal.App.5th 960, 974-975 (Miller) [same].)
A person acts with reckless indifference to human life when he or she “‘knowingly engag[es] in criminal activities known to carry a grave risk of death.'” (Clark, supra, 63 Cal.4th at p. 616; Banks, supra, 61 Cal.4th at p. 801.) “‘[T]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard ‘the significant risk of death his or her actions create.'” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins); Clark, at pp. 615-616; Banks, at p. 801.) Participation in an armed robbery by itself is not sufficient to show reckless indifference to human life. (Scoggins, supra, at p. 677; Clark, at pp. 615-616; Banks, at p. 810.)
We analyze the totality of the circumstances to determine whether White exhibited reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 677.) Clark delineated the relevant factors for evaluating this subjective requirement, which include: (1) the defendant's awareness that a lethal weapon would be used, whether the defendant personally used a lethal weapon, and the number of lethal weapons used; (2) the defendant's “[p]roximity to the murder and the events leading up to it”; (3) the length of time the victim was restrained by the defendant and his or her cohorts; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) whether the defendant made an effort to minimize the risk of violence. (Clark, supra, 63 Cal.4th at pp. 618-622; Scoggins, at p. 677.) No single factor is necessary, nor is any one necessarily sufficient. (Clark, at p. 618.)
For the first Clark factor, we analyze the circumstances surrounding the use of a lethal weapon and White's knowledge about the weapon. Only one gun was used in the commission of the robbery, and White was not the person who used it. There was no evidence that White supplied Abbott with the weapon. There was no evidence that White was armed or knew before the robbery that Abbott planned to use a gun, let alone a loaded gun, during the robbery. White is as culpable in this respect as the petitioner in Scoggins, who also did not use a gun or know that a gun would be used during the felony (Scoggins, supra, 9 Cal.5th at p. 677), and less culpable than the defendant in Clark, who believed an unloaded gun would be used (Clark, supra, 63 Cal.4th at p. 613; Scoggins, at p. 677 [describing the petitioner as “less culpable” than the defendant in Clark]).
One witness saw Abbott carrying a gun when he exited the bank and headed toward the getaway car. It is reasonable to infer from this evidence that White knew after the robbery that Abbott had been armed during the robbery and brandished his weapon during the offense. But there is no evidence that the gunshots were audible outside of the bank at all. Thus, all that can be inferred from the fact that Abbott ran out of the bank carrying a gun is that when White drove Abbott away from the bank after the robbery, White knew that Abbott was armed during the robbery and likely had brandished the gun during the robbery.
The People argue that White must have known that Abbott was going to use a gun during the robbery because “security guards are typically armed in order to protect the money they are delivering and retrieving” and “it was unlikely a security guard would simply give up and willingly hand over the cash he was transporting without Abbott's credible threat of violence.” There is no evidence that White knew that Abbott planned to rob the bank by robbing the armored car guard who was picking up money from the bank. There are other ways to attempt to rob a bank than by taking a bag of money from the armored car guard retrieving money from the bank's vault. While it seems unlikely that a person would attempt to rob a bank during business hours in broad daylight without a gun, it is possible. It also is possible that someone could plan to rob a bank with a gun that is not loaded or with a fake gun. These possible scenarios would not involve the use of lethal force or present a grave risk of violence. Absent any evidence that Abbott divulged to White how he planned to rob the bank, we cannot infer that White knew that Abbott was going to use a loaded gun to rob the bank from the circumstance that Abbott planned to rob a bank during business hours.
In any event, even assuming that it is reasonable to infer that White knew beforehand that Abbott intended to use a weapon to carry out the robbery, that is precisely what Banks and Clark said was not sufficient by itself to demonstrate reckless indifference to human life-that is, “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 p. 617; Banks, supra, 61 Cal.4th at p. 810.)
The second Clark factor is presence at or proximity to the offense. White was not inside the bank during the robbery and consequently was not in a position to prevent Abbott from shooting the guard either in the first instance or after the guard had fallen. Nor is there any evidence that White could see what was happening in the bank or hear the gunshots. Even if White somehow could have seen or heard the robbery, any reaction by White would have been too late because it appears that mere seconds elapsed between the first three gunshots and the fatal shot. Moreover, there is no evidence that White knew that the armored car guard was shot when White drove away from the bank, so there is no evidence that White could have attempted to assist the victim instead of helping Abbott escape. White's primary role was as the getaway driver, and there is no evidence that he had any involvement in the shooting. Because White was not present inside the bank during the robbery, his “actions were more akin to those of offenders in cases overturning special circumstances” findings for lack of sufficient evidence that the defendant exhibited reckless indifference to human life. (Taylor, supra, 34 Cal.App.5th at p. 559; id. at p. 559 [the defendant “was parked on the street near where the killing occurred, he never got out of the car and had no opportunity to prevent the shooting”]; Clark, supra, 63 Cal.4th at p. 619 [the defendant who planned the robbery was waiting across the parking lot when the victim was shot; no evidence that the defendant directed the coparticipant to use lethal force; the defendant did not “have an opportunity to observe [the shooter's] response to [the victim's] unanticipated appearance or to intervene to prevent [the victim's] killing”]; Scoggins, supra, 9 Cal.5th at p. 678 [the petitioner “was not physically present at the crime scene and was not in a position to restrain” the shooter, and it was not clear that the petitioner could see the confrontation]; Miller, supra, 14 Cal.App.5th at p. 974 [the petitioner “was not present at the scene of the killing and therefore had no opportunity to thwart it or assist the victim”]; In re Bennett (2018) 26 Cal.App.5th 1002, 1023 (Bennett) [the petitioner “‘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'”]; In re Ramirez (2019) 32 Cal.App.5th 384, 405 (Ramirez) [“close proximity to the shooting, ” but no evidence that the petitioner “was close enough to exercise a restraining effect on the crime or his colleagues”].)
With respect to the third Clark factor, we look at the duration of the crime. As Clark explained, the duration is relevant because when “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.” (Clark, supra, 63 Cal.4th at p. 620.) Here, White and Abbott left Wilkes on the residential street and returned approximately one hour later. There was no evidence about how much time Abbott spent in the car before going into the bank. A bank employee saw Abbott inside the bank for approximately two minutes while the guard was inside of the vault, but there was no evidence about whether and how long Abbott was inside the bank before that employee noticed him. Abbott shot the guard immediately after the guard exited the vault, so Abbott did not spend any time with the guard. Because there is no evidence that Abbott held at gunpoint, kidnapped, or otherwise restrained anyone for a prolonged period, and because there is no evidence that White was involved in or aware of any such restraint, this factor too supports the conclusion that the evidence is insufficient to show White acted with reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at pp. 680-681; Clark, supra, 63 Cal.4th at pp. 620-621; Miller, supra, 14 Cal.App.5th at p. 975; Taylor, supra, 34 Cal.App.5th at p. 558.)
As to the fourth Clark factor, White's knowledge of Abbott's propensity to kill, there is no evidence that White had any awareness that Abbott had a propensity for violence or was likely to use lethal force. This case mirrors Clark on this point. As in Clark, “no evidence was presented at trial that [Abbott] was known to have a propensity for violence, let alone evidence indicating that [White] was aware of such a propensity.” (Clark, supra, 63 Cal.4th at p. 621.) There was no evidence of (1) whether Abbott had any criminal history, let alone one involving shootings, murder, or attempted murder; (2) whether White knew of any such history; or (3) whether White and Abbott had previously participated in any crimes together. Moreover, because White was waiting for Abbott in the parking lot, White “had no opportunity to observe anything in [Abbott's] actions just before the shooting that would have indicated that [Abbott] was likely to engage in lethal violence. This factor thus does not increase [White's] culpability.” (Clark, supra, 63 Cal.4th at p. 621.)
In one significant respect, the present case is different from Clark and other cases concluding that there was insufficient evidence that the defendant acted with reckless indifference to human life. Here, there was evidence that killing the guard was integral to Abbott's plan of robbing the bank. (Cf. Scoggins, supra, 9 Cal.5th at p. 677 [“The record shows that [the petitioner's] plan did not involve shooting [the victim]”]; Clark, supra, 63 Cal.4th at p. 623 [“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”]; Miller, supra, 14 Cal.App.5th at p. 975 [the killing was “somewhat impulsive”]; Bennett, supra, 26 Cal.App.5th at p. 1025 [“No evidence was presented the codefendants discussed shooting anyone or engaging in violence”]; Ramirez, supra, 32 Cal.App.5th at p. 404 [“there was no evidence the killing was planned or even contemplated”].) We focus on White's individual culpability, however, and not on the culpability of Abbott, who planned and committed the robbery and shot the victim. (Enmund v. Florida (1982) 458 U.S. 782, 798.)
There was evidence that Abbott told Maza that he was going to rob the bank by killing the guard. But there was no evidence that Abbott conveyed that part of his plan to White. We cannot infer that White knew about how Abbott planned to rob the bank from the fact that Abbott shared that part of the plan with Maza. While it is possible that Abbott told White that his robbery plan involved killing an armored car guard, “‘a mere possibility is nothing more than speculation, '” which is not evidence. (People v. Wallace (2017) 15 Cal.App.5th 82, 93; Ramirez, supra, 32 Cal.App.5th at pp. 404-405.) In fact, there was no evidence that Abbott told anyone other than Maza that he planned to kill a guard. For example, Wilkes testified that he knew Abbott intended to rob a bank, but Wilkes said nothing of Abbott's plan to kill a guard. After the robbery, Abbott did not reveal to his girlfriend that he had robbed a bank, let alone shot a guard.
Given that White drove with Abbott to the bank before the robbery and drove Abbott away from the bank after the robbery, it is reasonable to infer that Abbott conveyed to White that he intended to rob a bank and that he needed a driver to help him flee. But on this record we can only speculate about whether White knew that killing the guard was part of Abbott's plan.
The People argue that “it is reasonable to presume” from Abbott and White's “long-time” friendship and the amount of communication between them in the days surrounding the robbery that, as Abbott had done with Maza, Abbott told White “that he intended to kill the security guard during the robbery to effectuate his escape.” Again, on this record those presumptions are nothing more than speculation and are not evidence. (Ramirez, supra, 32 Cal.App.5th at pp. 404-405.) In Banks, the Supreme Court rejected the argument that call records between the getaway driver and the shooter before and after the robbery showed that the driver acted as a major participant, given that there was no evidence introduced about the content of the calls. (Banks, supra, 61 Cal.4th at p. 807.) Here too, no evidence of the content of the calls was introduced. Thus, as in Banks, the evidence that White and Abbott communicated frequently on the day of the robbery and the days before and after the robbery tells us nothing additional about White's knowledge of Abbott's plan to kill the guard. (Ibid.)
Similarly, the length of the friendship between White and Abbott is not sufficient to support a reasonable inference that Abbott told White of the plan to kill the guard. No evidence was introduced about the quality of that friendship, the level of trust between the men, or the communications they shared. The length of the friendship between Abbott and White by itself does not support an inference that Abbott shared every aspect of the planned robbery with White or told White of the plan to kill the guard. Moreover, no other evidence supports such an inference. Wilkes was friends with Abbott for the same length of time, but Wilkes did not testify that he knew that Abbott planned to kill the guard as part of the plan to rob the bank. Similarly, after the robbery Abbott did not even tell his girlfriend where he obtained the money.
We also cannot infer that White acted with reckless indifference to human life from the evidence that he and Abbott were laughing as they drove away from the bank. There was no evidence about what caused the men to laugh or what Abbott told White had just happened inside the bank. Nor was there any evidence that the gunshots were audible outside the bank. White could have been laughing because he believed the robbery was successful without knowing that the success included killing the guard. Absent any evidence about what caused White to laugh or what he then knew about what had taken place inside the bank, the mere fact of White's laughter does not aid the analysis of whether White acted with reckless indifference to human life.
For the final Clark factor, there was no evidence that White attempted to minimize the risk of violence during the robbery, which was heightened by the fact that the robbery occurred during business hours. (Cf. Clark, supra, 63 Cal.4th at pp. 621-622 [the defendant was the principal planner and instigator of the robbery and attempted to minimize the risk of violence by planning the attempted robbery to take place “after closing time, when most of the employees had left the building, ” and “there were not supposed to be any bullets in the gun”].) But there also was no evidence that White did anything to increase the risk of violence-that is, there was no evidence that White had any involvement in planning to rob a bank during daytime business hours while people were working. There was no evidence that White had any input in planning the robbery at all. This factor consequently has a negligible impact on the analysis.
Considering the totality of the evidence against White, there is no evidence that White had any advance knowledge that Abbott planned to kill the armored car guard as part of his plan to rob the bank or even that Abbott planned to be armed with a loaded gun during the robbery. There is no evidence that White was “aware of and willingly involved in the violent manner in which the particular offense [was] committed....” (Banks, supra, 61 Cal.4th at p. 801.) The evidence therefore fails to show that White “‘knowingly engag[ed] in criminal activities known to carry a grave risk of death.'” (Id. at p. 811.) And there is nothing about White's role in the robbery as a getaway driver “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.) We consequently conclude that there is insufficient evidence to support the true findings on the robbery-murder and burglary-murder special circumstance allegations.
Applying the “indeterminate reasonableness standard” to assess the timeliness of the petition here (Robinson, supra, 9 Cal.5th at p. 890), we conclude that the habeas petition was timely for two reasons. First, White did not have access to his trial transcripts after May 2014, so any petition he filed would have been denied for failing to include an adequate record. (People v. Duvall (1995) 9 Cal.4th 464, 474.) (In 2017, White filed a habeas petition on the basis of Banks alone but did not include any transcripts from his trial; the petition was summarily denied.) Second, White filed the petition in pro per and is not a lawyer. (In re Saunders (1970) 2 Cal.3d 1033, 1040 [almost five-year delay justified given that the petitioner “had only a ninth grade education and was without experience or education in law”].) We reject the People's argument that White's habeas petition is procedurally barred as untimely. (Robinson v. Lewis (2020) 9 Cal.5th 883, 890-891 (Robinson).) We assume for purposes of our analysis that as of the Supreme Court's issuance of Clark in June 2016 (Clark, supra, 63 Cal.4th at p. 522), White “‘“or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.”'” (In re Reno (2012) 55 Cal.4th 428, 460.) Although White filed the present petition in June 2020, he filed a petition for resentencing under section 1170.95 on the basis of Banks and Clark in January 2019. There remains a split of authority about whether such a petition is a proper vehicle to overturn a robbery-murder or burglary-murder special circumstance finding. (People v. Jones (2020) 56 Cal.App.5th 474, 478-479, review granted Jan. 27, 2021, S265854.) Accordingly, because it was reasonable for White to pursue his claim under Banks and Clark via his section 1170.95 petition, we do not count the period from January 2019 to June 2020 against him.
DISPOSITION
The petition for writ of habeas corpus is granted. The true findings on the robbery-murder special circumstance allegation under section 190.2, subdivision (a)(17)(A), and the burglary-murder special circumstance allegation under section 190.2, subdivision (a)(17)(G), are vacated. The matter is remanded with directions to resentence White consistent with the views expressed in this opinion.
We concur: McKINSTER Acting P. J.MILLER J.