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Name: In re Loza
Case #: B279566
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 03/24/2017
Summary

Habeas petitioner’s challenge to special circumstance findings based on People v. Banks (2015) 61 Cal.4th 788 failed where the evidence reflected he was a major participant in the felony and acted with reckless indifference to human life. Loza was convicted of two counts of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of attempted robbery. The jury found true special circumstance allegations that the murders were committed while Loza was engaged in the attempted commission of a robbery or burglary (Pen. Code, § 190.2, subd. (a)(17)). He was sentenced to LWOP. Following the California Supreme Court’s decision in People v. Banks, Loza filed a petition for writ of habeas corpus in the Supreme Court challenging the sufficiency of the evidence supporting the robbery/burglary special circumstance findings. The Supreme Court issued an order to show cause returnable to the Court of Appeal. Held: Petition denied. Penal Code section 190.2, subdivision (d) codifies the constitutional limits for punishing accomplices to felony murder set forth in Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137. It provides that an aider and abettor of felony murder who did not personally kill shall be punished by death or LWOP if a special circumstance enumerated in subdivision (a)(17) is found true and the aider and abettor was a “major participant” in the crime and acted with “reckless indifference to human life.” In Banks, the court identified factors to consider in determining whether a defendant was a major participant. Evidence regarding Loza’s planning of and active role in the armed robbery supports the finding he was a major participant in the crime. Further, he provided a gun to a person he knew to be dangerous, failed to try to stop the killings, and rendered no aid to the victims. He thus acted with reckless indifference to human life. (Compare People v. Clark (2016) 63 Cal.4th 522.) [Editor’s Note: Because the court agreed with the People on the merits, it did not address the People’s argument that petitioner’s claim was procedurally barred.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B279566.PDF