Opinion
C088844
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. DERRICK EMAIRI, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. STK-CR-FE-COD-2015-0005573)
OPINION ON TRANSFER
Duarte, J.
This case arises out of the attempted robbery of a drug dealer by three young males that resulted in the fatal shooting of the dealer and serious gunshot injuries to the dealer's friend. A jury found Derrick Emairi, who was not alleged to be the shooter, guilty of attempted murder (Pen. Code, §§ 187, 664) and first degree murder (§ 187), finding true the special circumstance allegation that the murder occurred during the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). The jury also found true the allegation that the principal in the offenses was armed with a firearm. (§ 12022, subd. (a)(1).) The trial court sentenced defendant to life without the possibility of parole (LWOP) for the murder conviction, plus an aggregate consecutive term of eight years for the attempted murder conviction and firearm enhancement.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that reversal of his convictions was required because there was insufficient evidence to support the conclusion that he aided and abetted the underlying felony of attempted robbery. Defendant further contends that vacating the jury's true finding on the special circumstance allegation was required because there was insufficient evidence to support the conclusion that he was a "major participant" in the offenses who acted with a "reckless indifference" to human life. Finally, defendant contends that reversal was required due to recent statutory changes to the application of the felony murder rule and the natural and probable consequences doctrine pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437).
In June 2020, we issued an unpublished opinion affirming the judgment without prejudice to defendant seeking the ameliorative benefits of Senate Bill No. 1437 by filing a petition for relief in the trial court under then recently enacted section 1170.95. (People v. Emairi (June 3, 2020, C088844) [nonpub. opn.] (Emairi).) Effective January 1, 2019, Senate Bill No. 1437 amended" 'the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (See People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile) [Senate Bill No. 1437 eliminated aiding and abetting murder liability under a natural and probable consequences theory, such that the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for murder regardless of degree]; § 188, subd. (a)(3); § 189, subd. (e).) Senate Bill No. 1437 also added section 1170.95, which set forth a procedure whereby a person convicted of felony murder or murder under the natural and probable consequences doctrine could petition the trial court for resentencing relief. (See Gentile, at p. 843; former § 1170.95, subd. (a).) In affirming the judgment without prejudice to defendant filing a petition for resentencing relief in the trial court, we concluded that the relief under Senate Bill No. 1437 was not available on direct appeal. (Emairi, supra, C088844.)
As amended by Senate Bill No. 1437, section 188 provides: "Except [for felony murder] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." Section 189, subdivision (e), as amended by Senate Bill No. 1437, limits murder liability based on felony murder to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).)
On August 26, 2020, the California Supreme Court granted defendant's petition for review and deferred the matter pending consideration and disposition of a related issue under review in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175, that is, whether Senate Bill No. 1437 applies to attempted murder liability under the natural and probable consequences doctrine.
In October 2021, while this case was pending in the Supreme Court, the Governor signed into law Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill No. 775). Effective January 1, 2022, Senate Bill No. 775 amended section 1170.95 by expanding the scope of individuals entitled to seek resentencing relief to include individuals who had been convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (a); People v. Montes (2021) 71 Cal.App.5th 1001.) Senate Bill No. 775 also added subdivision (g) to section 1170.95. That provision states: "A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437 . . . ." (§ 1170.95, subd. (g).)
On December 22, 2021, the Supreme Court transferred this case to us with directions to vacate our prior decision and reconsider the matter in light of Senate Bill No. 775. Thereafter, the parties filed supplemental briefs wherein they agreed that defendant's attempted murder conviction must be reversed.
Having vacated our prior opinion and reconsidered the matter, we agree with the parties that Senate Bill No. 775 applies to defendant's pending appeal and that his attempted murder conviction must be reversed and the matter remanded for resentencing. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
This case involves the shooting of S.M. and the fatal shooting of Parris Hall around 8:20 p.m. on February 11, 2015. The prosecution's theory was that Eugene Gaines was the shooter, and that the shooting occurred during the commission of an attempted robbery of Hall by defendant and Eugene and Elijah Gaines. At the time of the shooting, defendant was 20 years old, Eugene was 15 years old, and Elijah was 13 years old.
Because Eugene and Elijah share the same last name, we refer to them by their first name. Eugene and Elijah are brothers.
Relevant Events Prior to the Shooting
In February 2015, Hall was 27 years old. He lived in Stockton and sold drugs, including marijuana, crack and powdered cocaine, and ecstasy.
On the morning of February 11, 2015, Hall's fiancée saw him place a bag of marijuana in the center console of his car. Later that day, Hall received several phone calls from his "little homies" while he was out grocery shopping for dinner. When he returned home, his phone rang twice. Thereafter, he left his residence and returned around 10 to 15 minutes later. Upon his return, he told his fiancée that "something . . . didn't feel right." About 15 minutes later, he left again with his neighbor and friend, S.M. It was around 8:00 p.m.
On the day of the shooting, S.M. drank beer (malt liquor) throughout the day and smoked black tar heroin and marijuana.
Hall told S.M. that he was going to sell a "ten-sack of weed" (i.e., $10 worth of marijuana) and give some "dudes" a ride. Hall texted his fiancée saying that he would be "right back."
When asked whether she had testified at the preliminary hearing that Hall told her he was going to give his "little homies" a ride, S.M. responded: "Probably did say that. It was years ago." S.M. noted that she did not know whether the marijuana was for the "dudes" Hall had agreed to give a ride.
Phone records showed that defendant's cell phones connected with Hall's cell phone numerous times from February 9 to February 11, 2015, including 23 times between 7:02 p.m. and 8:08 p.m. on February 11. Phone records also showed that, from early January 2015 to early February 2015, Hall's cell phone connected 59 times with Eugene's cell phone and 54 times with Elijah's cell phone.
The Shooting
After Hall left his residence with S.M., he drove to a gas station. S.M. sat in the front passenger seat. They arrived at 8:13 p.m.
At the gas station, three Black males--defendant, Eugene, and Elijah--got into the backseat of Hall's car. They were all wearing hooded sweatshirts covering their heads. S.M. did not recognize them. Hall drove away from the gas station at 8:14 p.m.
After leaving the gas station, Hall drove around a residential area for about five minutes. Suddenly and without warning, Eugene shot S.M. in the left side of the face and then shot Hall multiple times while the car was moving. S.M. screamed and Hall said," 'Aww, I'm done.' "
S.M. could not recall any specific conversation that occurred in the car prior to the shooting, although she indicated that there might have been a discussion about directions. S.M. did not speak to any of the males in the backseat and did not hear anyone say anything before the shooting.
Hall's car came to a stop after it crashed into a tree. S.M. got out and ran into the street screaming and waving her hands. She had a hole in her face and was bleeding.
After S.M. flagged down a car, the passenger called 911. The call, which was played for the jury, was placed at 8:20 p.m. S.M. reported that she and her friend had been shot, and that three "black dudes" had fled the scene, one of whom had dreads.
A resident in the area, Robert Willis, heard seven to 12 gunshots and saw flashes from the gunshots. Shortly thereafter, Willis observed two Black males, who appeared to be in their 20's, walking away from the area where the gunshots had been fired. The men, who were approximately six feet tall with a thin build, were laughing.
Several hours after the shooting, Willis told a detective that he had seen three Black males.
Within minutes, the police arrived. Willis told the responding officer about the two men he had observed. However, due to poor lighting and distance, Willis could not provide a more detailed description of the men.
Later that evening, Willis explained to a detective that the men he saw were walking across the street from his residence. At trial, he estimated that the men were about 63 feet away from him.
Hall died at the scene as a result of his gunshot wounds. S.M. was transported to the hospital. She was treated for her injuries and released two and a half weeks later.
The Investigation
Around 15 minutes after the shooting, a responding officer observed defendant and Eugene about three blocks from the location of the shooting. Because they were acting suspiciously, including repeatedly turning around to look behind them, they were followed and eventually detained. Defendant had three cell phones with him but did not have any money.
Approximately 15 to 20 minutes after defendant and Eugene were detained, an officer noticed a young Black male with dreads walking quickly towards the area where defendant and Eugene were being held. Because he matched the description of the perpetrators, he was detained. He voluntarily identified himself as Elijah.
At some point, Eugene's and Elijah's mother approached the area and asked an officer whether her sons were in the back of the patrol vehicles. The record reflects that Eugene and Elijah lived in the area near where the shooting occurred.
No evidence was presented indicating that Eugene or Elijah had any money on their person when they were detained. An officer testified that it was a common practice for police officers to patsearch a detained individual, and that if anything was found it would be identified in the police report.
In the early morning of February 12, 2015, an officer found a semiautomatic nine-millimeter handgun partially concealed in shrubbery near the location of the shooting. The gun, which had no ammunition in it, was found with Elijah's assistance after he was interrogated. A shell casing was stuck in the ejection port of the gun.
Among other things, the following items were found inside Hall's car: a bag of marijuana in the center console, an unloaded .38-caliber revolver on the floorboard of the front passenger seat, a cell phone on the floorboard of the driver's seat, and two spent shell casings. It was later determined that the two shell casings found in Hall's car had been fired from the gun to which Elijah had directed the police. It was also determined that two of the bullets recovered from Hall's body were fired from that gun.
Two additional shell casings found by the police were determined to have been fired from the same gun.
A fingerprint belonging to defendant was found on the magazine of the gun used in the shooting, and on the interior handle of the rear, passenger-side door of Hall's car.
An autopsy revealed that Hall was shot numerous times at close range from behind. He had eight gunshot wounds, including four to his neck and torso that entered on his right side, one to his right upper extremity, two to his right thigh, and one to his upper left extremity.
Postarrest Statements
Following their arrest, Eugene and Elijah were interrogated separately and then placed in the same interrogation room shortly before 3:00 a.m. on February 12, 2015. They whispered to each other for approximately one hour. Their conversation was recorded and played for the jury.
During the conversation, Eugene indicated that he told the police he knew Hall, and that Hall was his "connect." He also indicated that he had shot S.M. once and then "gave the rest" or the "whole clip" to Hall. Eugene told Elijah that Hall was dead and that he "should have killed [S.M.] too, bro." He explained, "I was all Boom, boom, boom, boom, boom," and that "[t]here is no hesitation if you be shootin, bro."
Over the course of the conversation, Eugene repeatedly blamed Elijah for their arrests. Eugene told him that they would not have been caught if "we" did not have to come back and look for him after the shooting. Eugene said that "we" were already at the house, and told Elijah that he should have ran home after the shooting. Eugene also said, "See, that's why we can't do shit like this with you cause you don't know how to get away, bro. You a sucker for letting them take you like that." When Elijah appeared scared, Eugene said, "You didn't have to be there, you could have said na, I'm good bro. You chose to be there. So it is what it is and there is no snichin blood."
Eugene assured Elijah that they would not serve any time unless the police found the gun used in the shooting. When asked, Elijah said that he hid the gun in some tall bushes on a street near the location of the shooting. He also said that, "It doesn't look good for D too." Eugene agreed: "All of us, bro, not just me, all of us, we all in here, we are all in with each other."
Eugene and Elijah also had the following exchange:
"Elijah: He didn't need it.
"Eugene: No.
"Elijah: He didn't have it.
"Eugene: He did but we can't get it.
"Elijah: Too late, huh."
Eugene later stated, "If we would've had money in [inaudible] we'd be two steps away right now." In response, Elijah said, "We had no time though the police they came asap, they came asap." Eugene replied, "That's what I'm saying. Like we didn't have time to get back to the car, he [(i.e., Hall) ] already drove it off." Thereafter, Eugene indicated that "we" went back to Hall's car, but "the police officers . . . showed up, we said fuck it."
Based on Eugene's and Elijah's postarrest conversation, it appears that the perpetrators got out of Hall's car after the shooting, and that Hall drove a short distance away before crashing into a tree.
DISCUSSION
I
Sufficiency of the Evidence
A. Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine '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.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Edwards (2013) 57 Cal.4th 658, 715.)
" 'The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.'" (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
The jury is entitled to draw reasonable inferences based on the evidence (People v. Livingston (2012) 53 Cal.4th 1145, 1166), and we must accept all logical inferences the jury might have drawn from the evidence, even if we would have concluded otherwise (People v. Salazar (2016) 63 Cal.4th 214, 242)." 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]'" (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Id. at p. 357.)
B. Felony Murder Conviction
At trial, the prosecution's theory was that defendant was guilty of first degree felony murder as an aider and abettor of an attempted robbery that, as a natural and probable consequence, resulted in the death of Hall. The prosecution also maintained that defendant was subject to the death penalty or LWOP under the special circumstances statute, as he was a "major participant" in the attempted robbery who acted with "reckless indifference" to human life. On appeal, defendant argues that the evidence was insufficient to show that he aided and abetted the underlying felony of attempted robbery. He further argues that the evidence was insufficient to show that he acted with "reckless indifference" to Hall's life and was a "major participant" in an attempted robbery. In other words, defendant challenges the sufficiency of the evidence as to his murder conviction and the jury's true finding on the attempted robbery-murder special-circumstance allegation.
In light of the recent changes in the law regarding the felony murder rule, including Senate Bill No. 1437's abrogation of the natural and probable consequences doctrine as a basis for accomplice liability for felony murder (§ 189, subd. (e)), we construe defendant's arguments as contending that the jury's true finding on the special circumstance allegation and his murder conviction must be reversed because there is insufficient evidence that he acted with "reckless indifference" to Hall's life and was a "major participant" in an attempted robbery. As we explain next, we disagree.
In his opening and reply briefs on appeal (but not in his supplemental brief following transfer from the Supreme Court), defendant argues that his murder conviction must be reversed because Senate Bill No. 1437 abrogated the basis for that conviction. In support of his position, defendant asserts that the "felony-murder conviction cannot stand under the new law because [he] was not the actual killer, did not intend to kill, and did not act with reckless indifference as a major participant in the [attempted] robbery." As we noted ante, Senate Bill No. 775 permits a person convicted of murder whose conviction is not final to challenge on direct appeal the validity of that conviction based on the changes made to sections 188 and 189 by Senate Bill No. 1437. (§ 1170.95, subd. (g).)
1. Applicable Legal Principles
In California, one who unlawfully kills a human being during the perpetration of or attempt to perpetrate certain enumerated felonies, including robbery, is guilty of first degree murder under the felony murder rule. (§ 189, subd. (a); People v. Thompson (2010) 49 Cal.4th 79, 115; People v. Cavitt (2004) 33 Cal.4th 187, 197.)
A conviction for first degree murder may result in a state prison term of 25 years to life. (§ 190, subd. (a).) However, if at least one special circumstance allegation is found true, a defendant may receive the death penalty or LWOP. (§ 190.2, subd. (a).) As relevant here, a special circumstance murder includes a killing committed while the defendant was an accomplice in the attempted commission of a robbery. (§ 190.2, subd. (a)(17)(A).)
Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) An attempted robbery consists of two elements: (1) specific intent to rob; and (2) a direct, unequivocal, but ineffectual overt act towards the commission of the intended robbery. (People v. Dillon (1983) 34 Cal.3d 441, 455-456; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
"A person who aids and abets the commission of a crime is culpable as a principal in that crime. [Citation.] Aiding and abetting is not a separate offense but a form of derivative liability for the underlying crime. [Citation.] Our law recognizes two forms of liability for aiders and abettors. [Citation.] First, under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with 'knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends.' [Citation.] [¶] Second, under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the "natural and probable consequence" of the crime the accomplice aided and abetted (i.e., the nontarget offense). [Citation.] A nontarget offense is the natural and probable consequence of a target offense 'if, judged objectively, the [nontarget] offense was reasonably foreseeable.'" (Gentile, supra, 10 Cal.5th at p. 843.)
Prior to the enactment of Senate Bill No. 1437, to determine whether a defendant was culpable on an aider and abettor theory, our Supreme Court had differentiated the elements required for first degree felony murder from those required for the felony murder special circumstance. (People v. Clark (2016) 63 Cal.4th 522, 615 (Clark).) In contrast to first degree felony murder, the actus reus for the felony murder aider and abettor special circumstance required more than simply being an aider and abettor of the underlying felony under section 31; it required that the defendant be a "major participant" in the underlying felony. (Clark, at p. 615.) Likewise, the mens rea requirement for the felony murder aider and abettor special circumstance was different from that required for first degree felony murder; it required that the defendant have "reckless indifference to human life." (Ibid.; see § 190.2, subd. (d).) Because the elements were different, what was sufficient to establish the elements for an aider and abettor of first degree felony murder was not necessarily sufficient to establish the elements of the felony murder aider and abettor special circumstance. (Clark, at p. 616.) However, as we next explain, Senate Bill No. 1437 amended the Penal Code to modify accomplice liability under the felony murder rule such that, under certain circumstances (as presented here), the elements necessary to establish first degree felony murder and the elements required to establish the felony murder special circumstance are the same.
Effective January 1, 2019, Senate Bill No. 1437 amended the felony murder rule by adding section 189, subdivision (e). (Stats. 2018, ch. 1015, § 3.) As previously indicated, that provision limits murder liability based on felony murder to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder; or (3) 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), italics added.) That provision, which is part of the special circumstances murder statute, reads in part: "[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 [an enumerated felony] 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), italics added.)
It is undisputed that defendant did not kill Hall and he was not prosecuted for felony murder under a direct aiding and abetting theory. Rather, as we have noted, defendant was prosecuted for felony murder as an aider and abettor under the natural and probable consequences doctrine. Thus, under current law, the jury's true finding on the attempted robbery-murder special-circumstance allegation and defendant's murder conviction must be reversed if there is insufficient evidence showing that he was a "major participant" in the attempted robbery of Hall who acted with "reckless indifference" to Hall's life. Before turning to this issue, we set forth the reckless indifference and major participant standards.
The "reckless indifference" and "major participant" requirements of section 190.2 codify the limits announced in Tison v. Arizona (1987) 481 U.S. 137. (People v. Estrada (1995) 11 Cal.4th 568, 575.) The Tison court held that the Eighth Amendment does not prohibit imposition of the death penalty on a defendant convicted of first degree felony murder so long as the defendant was a major participant in the underlying felony who acted with reckless indifference to human life. (Tison, at p. 158 & fn. 12.) Although these standards were developed in death penalty cases, they apply equally to cases involving LWOP under section 190.2, subdivision (d). (People v. Banks (2015) 61 Cal.4th 788, 804 (Banks).)
The major participant requirement means a defendant's personal involvement must be "substantial" and greater than the actions of an ordinary aider and abettor to an ordinary felony murder. (Banks, supra, 61 Cal.4th at pp. 798, 802.) The ultimate question "is 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major" [citations].'" (Clark, supra, 63 Cal.4th at p. 611.)
Our Supreme Court has identified the following list of nonexclusive factors to consider when analyzing whether a defendant acted as a major participant: (1)" 'What role did the defendant have in planning the criminal enterprise that led to one or more deaths?' "; (2)" 'What role did the defendant have in supplying or using lethal weapons?' "; (3)" '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?' "; (4)" '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?' "; and (5)" 'What did the defendant do after lethal force was used?'" (Clark, supra, 63 Cal.4th at p. 611, quoting Banks, supra, 61 Cal.4th at p. 803.) No single factor is necessary, but neither is any one of them necessarily sufficient. Instead, "[a]ll may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major' [citations]." (Banks, at p. 803.)
The Banks court discussed these factors in relation to a nonshooter aider and abettor in an armed robbery that resulted in a murder. (Banks, supra, 61 Cal.4th at p. 805.) In Banks, the court concluded that the defendant was ineligible for the death penalty because the record established he was "no more than a getaway driver." (Ibid.) In so concluding, the court noted that no evidence was introduced establishing the defendant's role in planning the robbery or in procuring weapons, and that during the robbery and murder he was absent from the scene, sitting in a car and waiting. (Ibid.)
As for the mens rea requirement of reckless indifference to human life, our Supreme Court has explained that a defendant must be"' "subjectively aware that his or her participation in the felony involved a grave risk of death." '" (Banks, supra, 61 Cal.4th at p. 807.) The question is "whether a defendant has' "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.) This requires more than the foreseeable risk of death inherent in any armed crime. (Id. at p. 808; see Clark, supra, 63 Cal.4th at pp. 617-618 [participation in an armed robbery, alone, does not demonstrate reckless indifference to human life].) Instead, the defendant must consciously disregard a substantial and unjustifiable risk to human life. (Clark, at p. 617.) In addition to a subjective component, the reckless indifference element also encompasses an objective component; a reviewing court asks whether the defendant's behavior was a" 'gross deviation'" from what a law-abiding person would have done under the circumstances. (Ibid.) The issue is whether the defendant exhibited a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant did not specifically desire for death to occur. (Ibid.)
Recognizing the overlap between the major participant and reckless indifference elements (Clark, supra, 63 Cal.4th at pp. 614-615), our Supreme Court has considered the following list of nonexclusive factors in determining whether a defendant acted with reckless indifference to human life: (1) a defendant's knowledge of weapons, and use and number of weapons; (2) a defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) a defendant's knowledge of the cohort's likelihood of killing; and (5) a defendant's efforts to minimize the risks of the violence during the felony. (Id. at pp. 618-623.) Like the factors for the major participant element, no particular factor is necessary nor is any one necessarily sufficient. (Id. at p. 618.)
Applying the foregoing factors, the Clark court vacated robbery-murder and burglary-murder special-circumstance findings where the defendant 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 pp. 612, 623.) There, the defendant and his brother and cousin conducted surveillance of a computer store, studying the number of employees and their activities around closing time. The defendant also secured use of a U-Haul truck by having another person rent the truck using a false driver's license defendant helped her procure. (Id. at pp. 536, 612.) The plan was for one man, Ervin, to enter the store around closing time with a gun, which was "apparently . . . [supposed] to be unloaded," and handcuff the remaining employees in the restroom so no one could call the police. (Id. at p. 613, fn. omitted.) Then, while the defendant sat in the parking lot in a car, his brother and another man, who apparently believed the store belonged to the defendant, were to help Ervin remove computers from the store and load them into the U-Haul that was parked nearby. However, before any computers could be removed, the mother of one of the handcuffed employees came into the store. Ervin shot her in the head and fled to the defendant's car. The defendant drove away, leaving Ervin to be apprehended in the parking lot by an officer who heard the gunshot while on patrol near the store. The gun Ervin used to murder the victim had been loaded with one bullet. (Id. at pp. 536-538, 613.)
Beginning with the factors concerning major participation, the Clark court stated: "[W]e can conclude that defendant had a prominent, if not the most prominent, role in planning the criminal enterprise that led to the death of [the victim]. No evidence was presented about defendant's role in supplying the weapon, although inferences can be drawn from [the evidence] that use of a weapon was part of his plan for the robbery. No evidence was presented about defendant's awareness of the particular dangers posed by the crime, beyond his concern to schedule the robbery after the store's closing time. No evidence was presented about his awareness of the past experience or conduct of Ervin, the shooter. Defendant was in the area during the robbery, orchestrating the second wave of the burglary after Ervin secured the store, but defendant was not in the immediate area where Ervin shot [the victim]." (Clark, supra, 63 Cal.4th at pp. 613-614.) The court then noted it previously upheld a major participant finding where "the defendant, although not present at the murder, was 'the founder, ringleader, and mastermind behind' a criminal gang engaged in carjacking," and gave "his subordinate gang members . . . 'a carjacking tutorial and instructed them that a resisting victim was to be shot.'" (Id. at p. 614, quoting People v. Williams (2015) 61 Cal.4th 1244, 1281.) However, the court declined to decide whether or not the defendant qualified as a major participant, concluding instead "the evidence was insufficient to support that he exhibited reckless indifference to human life." (Clark, at p. 614.)
In reaching this conclusion, the court explained that while the defendant knew a gun would be used, this fact alone was insufficient to establish reckless indifference. The only gun used during the attempted robbery was carried by Ervin, not the defendant, and that gun was loaded with only one bullet. (Clark, supra, 63 Cal.4th at pp. 618-619.) The court further explained that the defendant was in his car across the parking lot when the victim was shot and was not provided with an opportunity to provide a restraining influence on his murderous cohorts. (Id. at p. 619.) While the court acknowledged that the jury may have inferred the defendant was aware the victim had been shot when he drove from the scene, indicating a "desire to flee the scene as quickly as possible, without regard for [the] welfare . . . of the shooting victim," the court found this level of culpability less than in circumstances where a defendant would have known that help was on the way in the form of police intervention. (Id. at p. 620.)
With respect to duration of the interaction between victims and perpetrators, the court noted the defendant planned the robbery for closing time, when most employees would be gone, and those who remained would be handcuffed in the bathroom. Thus, while the robbery would take some time to complete, "the period of interaction between perpetrators and victims was designed to be limited." (Clark, supra, 63 Cal.4th at p. 620.) At the same time, the court explained, "[b]ecause the robbery was planned for a public space and involved the prolonged detention of employees, the crime did involve the risk of interlopers, such as [the murder victim] . . . But overall, the evidence was insufficient to show that the duration of the felony under these circumstances supported the conclusion that defendant exhibited reckless indifference to human life." (Id. at pp. 620-621.) There was no evidence Ervin was known to have a propensity for violence or the defendant had any knowledge of such a propensity. (Id. at p. 621.)
Finally, the court considered the defendant's "apparent efforts to minimize the risks of violence," i.e., (1) the robbery was planned for closing time when most employees would be gone, (2) the gun was apparently supposed to have been unloaded, and (3) the gun was loaded with only one bullet (Clark, supra, 63 Cal.4th at pp. 621-622), and concluded: "Defendant's culpability for [the victim's] murder resides in his role as planner and organizer, or as the one who set the crime in motion, rather than in his actions on the ground in the immediate events leading up to her murder. But also relevant to his culpability as planner, there is evidence that defendant planned the crime with an eye to minimizing the possibilities for violence. Such a factor does not, in itself, necessarily preclude a finding of reckless indifference to human life. But here 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. Given defendant's apparent efforts to minimize violence and the relative paucity of other evidence to support a finding of reckless indifference to human life, we conclude that insufficient evidence supports the robbery-murder and burglary-murder special-circumstance findings, and we therefore vacate them." (Id. at p. 623.)
2. Analysis
Viewing the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the jury's true finding on the attempted robbery-murder special-circumstance allegation and defendant's murder conviction. There was sufficient evidence from which a jury could reasonably conclude that defendant acted with "reckless indifference" to Hall's life and was a "major participant" in the events that resulted in Hall's death.
a. Major Participant
In order to be considered a major participant, defendant "must have been actively and substantially involved in the events leading up to [Hall's] murder." (Banks, supra, 61 Cal.4th at p. 801.) However, this does not simply mean active and substantial involvement in the underlying felony. Instead, considering defendant's "personal role in the crimes leading to [Hall's] death" and weighing his "individual responsibility for the loss of life" (ibid.), we must determine whether defendant's "participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major'" under section 190.2, subdivision (d). (Banks, at p. 803.)
Applying the relevant factors identified by our Supreme Court, we conclude that substantial evidence supports the conclusion that defendant was a "major participant" within the meaning of section 190.2, subdivision (d). Here, defendant's exact role in planning the attempted robbery is not clear. However, the record shows that Hall was a drug dealer, and that Hall was Eugene's "connect." The record also shows that defendant called Hall or allowed Eugene or Elijah to use his cell phone for the purpose of luring Hall to the gas station so they could purportedly buy marijuana from him. Defendant's cell phones connected with Hall's cell phone numerous times on the evening of the shooting, including 10 times between 7:25 p.m. and 8:08 p.m., the last call occurring approximately 10 minutes before the shooting. The evidence further showed that Hall left his residence to sell a "ten-sack" of marijuana and give his "little homies" a ride. This evidence, viewed together with the evidence that defendant supplied and/or loaded the murder weapon (as his fingerprint was found on the gun's magazine containing at least nine bullets) and his conduct following the shooting, reasonably support the conclusion he had a role in planning the robbery and procuring the weapon used in the killing of Hall. After the shooting, defendant initially fled the scene with Eugene. However, they returned to the area near Hall's car within minutes but fled because the police arrived. Under these circumstances, a reasonable jury could have inferred that defendant returned to the crime scene to take items from Hall as planned.
While there was no evidence defendant knew Hall was violent or armed, an armed robbery of a drug dealer inside a car is inherently dangerous and the jury could have reasonably concluded defendant was aware of such danger. A reasonable jury could also have concluded that defendant was at the scene of the killing in a position to facilitate or prevent the murder of Hall. There was evidence that defendant was in the backseat of Hall's car with Eugene during the five or so minutes prior to the shooting, and therefore could have intervened on Hall's behalf, at the very least, after Eugene fired the first shot.
Finally, rather than call for help or render aid to Hall or S.M. after the shooting, defendant fled from the area to avoid apprehension. He did so with the knowledge that the victims were seriously injured. At least nine gunshots were fired at the victims at close range. Hall crashed his car into a tree following the shooting and S.M. was screaming. Although the police arrived within minutes of the shooting, defendant, unlike the defendant in Clark, fled without knowing that help in the form of police intervention was on its way. (See Clark, supra, 63 Cal.4th at p. 620 ["defendant would have known that help in the form of police intervention was arriving"].)
b. Reckless Indifference
We also conclude substantial evidence supports the conclusion that defendant possessed the requisite mens rea--"reckless indifference to human life" within the meaning of section 190.2, subdivision (d). Before analyzing the relevant factors identified by our Supreme Court, we pause to note that there is significant overlap with the relevant factors considered in analyzing the major participant element. This is because these elements are interrelated such that" 'the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at pp. 614-615.)
As we have already explained in addressing defendant's level of participation, the record supports the conclusion that defendant knew Eugene was armed with a gun containing at least nine bullets, and that defendant was at the scene of the murder and in a position to restrain Eugene but failed to do so. Defendant also could have aided the victims or called for help after the shooting. Instead, he fled the scene and was observed laughing, which reflected an utter indifference to the victims' lives, particularly since he knew that they were seriously injured.
The duration of the attempted robbery was relatively brief, and the record does not reflect there was any interaction between the perpetrators and the victims prior to the shooting, except for a possible discussion about directions. However, unlike in Clark, where this factor weighed in favor of the defendant because he planned for limited interaction between the robbers and a limited number of victims during what would be a fairly extended period of time, and they would be robbing the store with a gun that was supposed to be unloaded, thereby minimizing the risk of violence (Clark, supra, 63 Cal.4th at pp. 537, 612-613, 620), here the attempted robbery itself was short in duration because Eugene shot the victims suddenly and without warning and the police arrived on scene within minutes, which prevented Eugene and defendant from returning to Hall's car and taking items. Under these circumstances, we do not view this factor as weighing in favor of defendant and it is arguably irrelevant. The Clark court explained that this factor is relevant because "[w]here 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." (Id. at p. 620.) Here, there is no evidence Hall was restrained for any period, heightening the risk he would be murdered.
While no direct evidence was presented showing defendant knew Eugene was likely to kill during the attempted robbery until the first shot was fired, defendant's postshooting conduct--laughing while fleeing with Eugene and then attempting to return to the crime scene shortly thereafter with Eugene--shows that defendant was not surprised by the shooting. Moreover, the record does not reflect the shooting was reactionary. Instead, the record discloses that the shooting was calculated and deliberate, and that defendant was in a position to view Eugene's actions immediately prior to the shooting. In view of the nature of the killing, the evidence indicating defendant loaded and/or supplied the murder weapon, and defendant's postshooting conduct, a jury could have reasonably inferred defendant had advance notice that Eugene would use lethal force.
Finally, defendant took no action to minimize the risk of violence, even though he had the opportunity to do so prior to the shooting. He also had a brief but critical opportunity to say or do something after Eugene fired the first shot. In contrast to the defendant in Clark, who was in the store's parking lot when an accomplice shot and killed a person inside the store, defendant was in a position to observe the shooter's actions just before the shooting that would have indicated that the shooter was likely to engage in lethal violence. (Clark, supra, 63 Cal.4th at p. 621.) In further contrast to the defendant in Clark, who tried to minimize or eliminate bullets for the one gun at the scene (id. at pp. 612-613), there was evidence here that defendant supplied and/or loaded the murder weapon, which contained at least nine bullets.
C. Attempted Murder Conviction
At trial, the prosecution's theory was that defendant was guilty of attempted murder pursuant to the natural and probable consequences doctrine. That is, defendant was guilty of attempted murder because the shooting of S.M. was a natural and probable consequence of the crime he aided and abetted--attempted robbery. On appeal, defendant contends the record does not contain substantial evidence to support his attempted murder conviction. We need not and do not consider this issue because, as we explain next, recent changes to the law require that we reverse defendant's attempted murder conviction.
II
Senate Bill Nos. 1437 and 755
As previously indicated, effective January 1, 2019, Senate Bill No. 1437 amended" 'the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (See Gentile, supra, 10 Cal.5th at p. 842 [Senate Bill No. 1437 eliminated aiding and abetting murder liability under a natural and probable consequences theory, such that the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for murder regardless of degree]; § 188, subd. (a)(3); § 189, subd. (e).) Senate Bill No. 1437 also added section 1170.95, which set forth a procedure whereby a person convicted of felony murder or murder under the natural and probable consequences doctrine could petition the trial court for resentencing relief. (See Gentile, at p. 843; former § 1170.95, subd. (a).)
Effective January 1, 2022, Senate Bill No. 775 amended section 1170.95 to expand the individuals entitled to petition for resentencing relief. (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (a); People v. Montes, supra, 71 Cal.App.5th 1001.) Subdivision (a) now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing. (§ 1170.95, subd. (a); Montes, at p. 1005.) Senate Bill No. 775 also added subdivision (g) to section 1170.95. That provision states: "A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437 . . . ." (§ 1170.95, subd. (g).)
Prior to the enactment of Senate Bill No. 775, courts had concluded that resentencing relief under section 1170.95 was limited to murder convictions and did not extend to persons convicted of manslaughter or attempted murder. (See, e.g., People v. Turner (2020) 45 Cal.App.5th 428, 435-436.) In enacting Senate Bill No. 775, the Legislature explained that one of its purposes was to clarify that section 1170.95 is applicable to manslaughter and attempted murder convictions. (See Stats. 2021, ch. 551, § 1, subd. (a) ["[T]his legislation . . . [¶] . . . [c]larifies that persons convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories"].)
The parties agree, and we concur, that defendant is entitled to the ameliorative benefits of Senate Bill Nos. 1437 and 775, as his criminal judgment is not yet final and he was convicted of felony murder and attempted murder under a natural and probable consequences theory. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 [a criminal judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court].)
We also agree with the parties that defendant's attempted murder conviction must be reversed. The record makes clear that defendant was convicted of this offense pursuant to a natural and probable consequences theory. As our Supreme Court recently explained, Senate Bill No. 1437 "eliminates natural and probable consequences liability for murder regardless of degree." (Gentile, supra, 10 Cal.5th at p. 848.) It logically follows that liability for attempted murder, which requires express malice (People v. Booker (2011) 51 Cal.4th 141, 178), cannot be based on the natural and probable consequences doctrine. As amended by Senate Bill No. 1437, section 188 states: "Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Accordingly, because malice cannot be imputed to a defendant who, as here, aids and abets a target offense without intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder. (See People v. Larios (2019) 42 Cal.App.5th 956, 966, review granted Feb. 26, 2020, S259983.) As such, we will reverse defendant's attempted murder conviction and remand for resentencing.
DISPOSITION
Defendant's attempted murder conviction (§§ 187, 664) is reversed and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: Mauro, Acting P. J., Krause, J.