In habeas corpus proceeding, defendant’s robbery-murder special circumstance finding reversed for insufficient evidence that he acted with “reckless indifference to human life.” In 2002, Miller was convicted as an aider and abettor of the first degree felony murder of Franco and the robbery of Saravia. The jury found true a robbery special circumstance (Pen. Code, § 190.2, subd. (a)(17)(A)). Miller was sentenced to LWOP. His conviction was affirmed on direct appeal. After the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788, Miller filed a petition for writ of habeas corpus challenging the sufficiency of the evidence supporting the special circumstance. Held: Petition granted. Penal Code section 190.2, subdivision (f) provides that a person who is not the actual killer, but who acts with reckless indifference to human life and as a major participant, aids and abets the commission of a specified felony, including robbery, which results in the death of a person, and who is found guilty of first degree murder, shall be punished by death or LWOP. In Banks, the Supreme Court found that the personal involvement of an aider and abettor who lacks the intent to kill “must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” The defendant must knowingly engage in criminal conduct known to carry a grave risk of death, demonstrating reckless indifference to the high risk of death his conduct creates. (Banks, supra, 61 Cal.4th at pp. 801-802.) In People v. Clark (2016) 63 Cal.4th 522, the Supreme Court further defined the analysis, with greater emphasis on the requirements of reckless indifference to human life. Applying Banks and Clark, there was insufficient evidence to support the special circumstance finding as to Miller. Even though he “masterminded” the robbery that resulted in Franco’s death, Miller was not present at the scene of the crime, had no opportunity to thwart the killing, and “there was no evidence he knew that lethal force was appreciably more likely than that inherent in a ‘garden-variety armed robbery, where death might be possible but not probable.'”

A habeas corpus petition may raise a sufficiency issue where it is necessary to vindicate a defendant’s due process rights. The Attorney General argued that Miller’s petition should be denied because (1) his argument was previously considered and rejected on direct appeal; (2) claims of insufficiency of the evidence are not cognizable in a petition for writ of habeas corpus; and, (3) Banks and Clark do not apply retroactively. Federal due process forbids a State to convict a person of a crime without proving the elements of the crime beyond a reasonable doubt. The opinions in Banks and Clark did not establish a new rule of law but merely clarified the meaning of Penal Code section 190.2 with respect to the “major participant” and “reckless indifference to human life” requirements, which existed before Miller’s conviction became final. While legal claims that have been raised and rejected on direct appeal may generally not be raised in a petition for writ of habeas corpus (see In re Waltreus (1965) 62 Cal.2d 218), this has no application where, in light of Banks and Clark, it is plain that the requirements of section 190.2 went unsatisfied by the proof at Miller’s trial. (See Fiore v. White (2001) 531 U.S. 225.)

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B278902.PDF