Felony murder special circumstance finding vacated where evidence failed to show defendant was a major participant in the murder committed while he was an accomplice to an attempted commission of robbery. In February 1997, Ramirez was convicted of murder committed while he was an accomplice in an attempted robbery. A robbery-murder special circumstance was found true, and he was sentenced LWOP. His conviction was affirmed on direct appeal. After the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788, Ramirez filed a writ petition challenging the sufficiency of the evidence to sustain the special circumstance finding. Held: Petition granted, special circumstance vacated. Murder committed in the perpetration or attempted perpetration of robbery is first degree murder. Further, a defendant is subject to an LWOP sentence where he is found guilty of first degree murder committed while he was an accomplice in the attempted commission of robbery. For a person who aided and abetted the underlying felony but who was not the actual killer, the special circumstance requires a finding of intent to kill or a reckless indifference to human life and that the defendant was a major participant in the crime. Here, Ramirez supplied the weapons ultimately used, but there was no evidence that any criminal conduct was contemplated at the time. Ramirez went along with the suggestion that a robbery be committed, gave one of the robbers a ride to a bar, waited for a likely victim, then acted as the getaway driver. However, there was no evidence the killing was planned; it occurred in response to the victim’s resistance. No evidence was presented that the actual killer was known to Ramirez to have a propensity for violence. And while Ramirez was in close proximity, he was not close enough to make efforts to minimize the risks of violence during the felony. On balance, the evidence did not support the special circumstance finding. [Editor’s Note: In this habeas proceeding, the court requested supplemental briefing regarding the effect, if any, of Senate Bill No. 1437 on petitioner. The Court of Appeal agreed with the parties that it need not address this new law in the present habeas proceeding.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/F075897.PDF