Petitioner was entitled to habeas relief based on Banks and Clark because his actions after a murder betraying an indifference to the loss of life do not, standing alone, establish sufficient evidence that he acted with reckless indifference to human life during an attempted robbery. Taylor was the getaway driver in an attempted robbery of a liquor store during which a store employee was killed. After the killing, he expressed callous indifference to the employee’s death. In 1994, he was convicted of first degree felony murder. The jury found true a special circumstance that the killing occurred in the commission of an attempted robbery that Taylor aided and abetted “as a major participant” and “with reckless indifference to human life,” resulting in a LWOP sentence. In 2016, Taylor began filing habeas petitions challenging the special circumstance finding under People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, which clarified what it means for an aiding and abetting defendant to be a “major participant” who acted with “reckless indifference to human life.” The California Supreme Court ultimately issued an order to show cause and the case was transferred to the Court of Appeal. Held: Special circumstance vacated. Murder committed in the attempt to perpetrate a robbery is first degree murder. To sustain a robbery murder special circumstance, a defendant who aids and abets the robbery but who was not the actual killer and did not have the intent to kill, must aid and abet the crime with reckless indifference to human life and as a major participant. (Pen. Code, § 190.2, subd. (d).) Here, the evidence was insufficient to show Taylor acted with reckless indifference to human life. Taylor and his accomplice Davis planned to quickly grab the money from the lone employee as she left the store after closing. When the employee struggled with Davis, he shot her, which tended to show an impulsive shooting in response to the victim’s resistance. Further, Taylor sat in the car across the street from the store and had no opportunity to prevent the shooting. Although his callous comments after the killing reflected an indifference to the victim’s death, it does not prove he knowingly created a grave risk of death with respect to his participation in the planned robbery.

Petitioner’s habeas claim based on Banks and Clark was not procedurally defaulted. The Attorney General argued that Taylor’s Banks/Clark claim was procedurally barred because (1) it was raised and rejected on appeal; (2) substantial-evidence claims are not cognizable in habeas corpus proceedings; and (3) the petition was untimely. The Court of Appeal disagreed. The court relied on In re Miller (2017) 14 Cal.App.5th 960 and In re Ramirez (2019) 32 Cal.App.5th 384 to conclude that the first two procedural bars did not apply. As for the timeliness of the petition, “[a] criminal defendant mounting a collateral attack on a final judgment of conviction must do so in a timely manner. It has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief.” (In re Reno (2012) 55 Cal.4th 428, 459 [internal quotations omitted].) Substantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. The court here concluded that any delay can be measured only from the dates of the Banks decision (which was decided on July 9, 2015 and became final on October 7, 2015) and the Clark decision (which was decided on June 27, 2016), not the disposition of Taylor’s substantial-evidence claim on direct appeal. Taylor filed his first habeas corpus petition in the trial court four days after Clark was decided. Even putting aside Clark, the court could not say that Taylor’s filing of a petition less than a year after Banks became final constituted a substantial delay.

Petitioner must file his Senate Bill No. 1437 challenge to the felony murder conviction in the trial court. Taylor argued that if the court vacated the special circumstance, the court must also vacate his felony murder conviction pursuant to SB 1437, which amended Penal Code section 189 to provide that a defendant who was not the actual killer and did not have the intent to kill is not liable for felony murder unless he was a major participant and acted with reckless indifference to human life. The court acknowledged that the standard under section 189 for holding a defendant liable for felony murder is the same as the standard for finding a special circumstance under section 190.2, subdivision (d). However, SB 1437 also added Penal Code section 1170.95 to allow qualified defendants convicted of felony murder to petition to have their convictions vacated and to be resentenced on remaining counts. Here, Taylor mentioned SB 1437 only in passing in his habeas petition and did not brief the issue until he filed his traverse. The Attorney General did not address the issue. The more efficient course is for Taylor to file a petition in the trial court under section 1170.95. The court did not need to decide on these facts whether all defendants must seek relief under SB 1437 by a petition under section 1170.95, or whether relief may also be available in habeas proceedings.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A155328.PDF