Robbery aider and abettors, who did not intend for the robbery victim to be killed, were properly convicted of special circumstance murder. Morton, Medina, and Whitehead attempted to rob a drug dealer. During the attempted robbery, Morton shot and killed the drug dealer. Among other offenses, the three were convicted of special circumstance murder with attempted robbery as the special circumstance and sentenced to LWOP. Medina and Whitehead appealed, arguing there was insufficient evidence to prove the special circumstance. The California Supreme Court granted review and remanded for reconsideration in light of People v. Banks (2015) 61 Cal.4th 788. Held: Affirmed. Penal Code section 190.2 provides that an aider and abettor who does not have the intent to kill may be convicted of special circumstance murder where he “with reckless indifference to human life and as a major participant” aids and abets certain felonies. (Pen. Code, § 190.2, subd. (d).) Banks clarified that when a plan does not include the use of lethal force, absence from the scene may significantly diminish culpability for death, and that knowledge of the possible risk of death inherent in certain felonies—like armed robbery and knowledge that confederates are armed—are insufficient alone to show a reckless indifference to human life. Here, the extent of Medina and Whitehead’s involvement in the robbery was sufficient to prove they acted with reckless indifference to human life and as major participants. Medina was involved in planning the robbery, was physically present during it, used a gun, and knew Morton was likely to shoot the victim. Although Whitehead was not involved in planning the robbery, when he found out about it he asked to go and participated fully as armed backup. Under the circumstances there was sufficient evidence to support the special circumstance finding.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C069965A.PDF