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Name: People v. Banks
Case #: S213819
Court: CA Supreme Court
District CalSup
Opinion Date: 07/09/2015

Insufficient evidence supports a felony-murder special circumstance when the defendant’s only participation in the underlying felony is as a getaway driver. Matthews was the getaway driver for an armed robbery in which Banks and others participated. During the robbery, Banks shot and killed one of the victims. The jury found Matthews guilty of first degree murder under a felony-murder theory and found true a felony-murder special circumstance (Pen. Code, § 190.2, subd. (a)(17)). The People did not seek the death penalty and Matthews was sentenced to mandatory LWOP. (See Pen. Code, § 190.2, subd. (d).) Matthews appealed. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Reversed and remanded for resentencing. In Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 the United States Supreme Court held that it was unconstitutional to sentence a felony murderer who did not personally kill to death unless the defendant was a major participant in the underlying felony and acted with reckless indifference to human life. California codified the Enmund-Tison standard in section 190.2, subdivision (d), which provides that an aider and abettor who did not personally kill shall be punished by death or mandatory LWOP if a special circumstance in subdivision (a)(17) is found true and the Enmund-Tison standard is met. The court closely analyzed Enmund and Tison and enumerated factors that are relevant in determining whether a defendant may be punished under section 190.2, subdivision (d). Knowledge of the possible risk of death inherent in certain felonies (like armed robbery) does not satisfy the Enmund-Tison standard. On the record in this case, there was insufficient evidence to find the special circumstance true and Matthews’s eligible for a mandatory LWOP sentence. Although he served as the getaway driver, Enmund specifically held that a getaway driver is not a major participant.

Although the Enmund-Tison standard developed in death penalty cases, it applies equally to cases involving statutory eligibility for LWOP under section 190.2, subdivision (d). Although California could impose LWOP sentences on felony murderers with Matthews’s degree of culpability, section 190.2, subdivision (d) does not extend eligibility for LWOP to every defendant exhibiting the constitutionally minimum degree of culpability for that sentence. Instead, it imports the Enmund-Tison standard and only permits such a sentence for felons who could also be subjected to death. “As a matter of state statute, then, the Tison-Enmund standard is ‘applicable to all allegations of a felony-murder special circumstance, regardless of whether the People seek and exact the death penalty or a sentence of life without parole.'” (Quoting People v. Estrada (1995) 11 Cal.4th 568, 576.)