Robbery special circumstance finding reversed where there was insufficient evidence defendant was a “major participant” who acted with “reckless indifference to human life.” Bennett was convicted of first degree special circumstances murder based on his aiding and abetting a robbery. He received an LWOP sentence. In 2010 his conviction was affirmed. After the decision in People v. Banks (2015) 61 Cal.4th 788, he filed a habeas petition challenging the sufficiency of the evidence to support the special circumstance finding. The Supreme Court ordered the CDCR to show cause in the Court of Appeal why relief should not be granted. Held: Petition granted. All murder committed during the commission of a robbery is first degree murder. Further, “every person, not the actual killer, who, with reckless indifference to human life and as a major participant” aids and abets the commission of specified felonies (including robbery) which results in the death of another person, and who is found guilty of first degree murder, is eligible for LWOP if the felony murder special circumstance is found true. (Pen. Code, § 190.2, subds. (a)(17), (d).) After analyzing the factors set forth in Banks and People v. Clark (2016) 63 Cal.4th 522, the Court of Appeal concluded the evidence failed to show that Bennett was a major participant who acted with a reckless indifference to human life in carrying out the robbery. Although Bennett helped plan the robbery, there was no evidence he was aware of his codefendants’ violent nature, that a codefendant was armed, or that he planned a killing. Bennett was across the street at the time of the shooting, did not see the shooting, or know it was going to occur. He was not close enough to the scene of the killing to intervene.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G055371.PDF