Opinion Bank # O-215
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent, A066707
(Alameda County Super. Ct.
Nos. 112123B and 112123C)
DARNELL TIMMS et al.,
Defendants and Appellants.
EXCERPT FROM OPINION
APPEAL BY McMULLEN
To support a felony-murder special circumstance finding against an aider and abettor who is not the actual killer, the prosecution must prove the defendant had the intent to kill (§ 190.2, subd. (c)), or aided and abetted in the underlying felony “with reckless indifference to human life and as a major participant . . . .” (§ 190.2, subd. (d) [hereafter 190.2(d)].) It was undisputed that the actual shooter in this case was Timms, not McMullen, and the prosecutor did not argue that McMullen participated in the robbery with the intent to kill. Instead, the prosecutor’s special circumstance theory was that McMullen was a major participant in the robbery and acted with reckless indifference to human life. The trial court denied McMullen’s motion pursuant to section 1118.1 for a judgment of acquittal of the special circumstance allegation, and the jury found the allegation true.
Because the prosecution did not seek the death penalty, the sole punishment for McMullen’s conviction of first degree murder with a special circumstance was life imprisonment without possibility of parole. At sentencing, however, both the prosecutor and McMullen asked the court to strike the special circumstance. McMullen also asked the court to reduce his conviction to second degree murder pursuant to People v. Dillon (1983) 34 Cal.3d 441; that motion was opposed by the prosecutor. The court denied the motion to strike, explaining that it was precluded by section 1385.1 from striking or dismissing a special circumstance, and that it would not grant the motion even if it had the power to do so, because the evidence was sufficient to support the jury’s determination. The court also denied the Dillon motion to reduce the conviction.
B. Sufficiency of the Evidence
First, McMullen contends that the evidence was not sufficient to support the special circumstance finding. We agree.
Section 190.2(d) conforms state law with requirements for imposition of a death sentence on a felony murderer set forth by the United States Supreme Court in Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison). See People v. Estrada 11 Cal.4th 568, 575-577; Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, fn. 16.) In Enmund, a defendant convicted of felony murder was sentenced to death based solely on evidence that he drove the get-away car from the scene of an armed robbery in which his accomplices killed the victims. The Supreme Court reversed the death sentence, reasoning that the Eighth Amendment did not permit imposition of the death penalty on a defendant who aided and abetted a felony in the course of which a murder was committed by others, but who did not himself kill, attempt to kill, or intend that a killing take place or that lethal force would be employed. (Enmund, supra, at pp. 797-798.)
In Tison, supra, 481 U.S. 137, two brothers were convicted of four felony murders and sentenced to death. They relied on Enmund to argue that because they did not intend to kill their victims, their death sentences were disproportionate to their culpability. The Supreme Court disagreed. First, it rejected the notion that a participant in a violent felony, even an armed robbery, in which a killing occurs can be sentenced to death simply because the possibility of bloodshed is inherent in the commission of any such felony and is generally foreseeable and foreseen. (Tison, supra, at pp. 150-151.) Nevertheless, the court held that the Eighth Amendment does not prohibit a death sentence for a defendant convicted of felony murder who did not intend to kill, but whose participation in the crimes was “major rather than minor” and whose mental state was one of “reckless indifference to the value of human life.” (Id. at pp. 151-152.)
McMullen’s appeal involves the sufficiency of the evidence to satisfy the statutory requirement contained in section 190.2(d), not the proportionality of a death sentence. Nevertheless, because the statute is based on Tison, that case necessarily informs our analysis. Our Supreme Court recently explained that although Tison does not stand for the proposition that imposition of a lesser penalty than death would offend constitutional principles absent proof of reckless indifference to life, we must look to that case for the meaning of the terms used in section 1902.(d). Tison is the source of the language of section 190.2(d), and the constitutional standards set forth in that opinion are therefore 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.” (People v. Estrada, supra, 11 Cal.4th at pp. 575-576.)
The Tison court did not further define these standards or attempt to delineate precisely the particular types of conduct or the states of mind making one a major participant or demonstrating reckless indifference to life. It did explain, however, that the two requirements may overlap significantly. The greater the degree of a defendant’s participation in the felony murder the more likely that he or she acted with reckless indifference to human life. But the fact that a defendant was a major participant in a felony does not necessarily suffice in and of itself to establish reckless indifference. (Tison, supra, 481 U.S. at pp. 153, 159, fn. 12.) After analyzing Tison, our own Supreme Court has concluded that the mental state of “reckless indifference to life” within the meaning of that case and of section 190.2(d) is one in which the defendant subjectively appreciated or knew that his or her participation in the underlying felony created a grave risk to human life. (People v. Estrada, supra, 11 Cal.4th at pp. 577-578.) This subjective standard necessarily requires a determination that the defendant actually appreciated the grave life-threatening risk. (See People v. Dellinger (1989) 49 Cal.3d 1212, 1217-1219.)
Was the evidence of McMullen’s involvement in this case sufficient to satisfy the Tison-derived requirements of section 190.2(d)? To answer that question, we begin by considering the evidence in Tison itself. because defendants’ conduct in that case easily qualified them as major participants and demonstrated their reckless indifference. The two Tison brothers and a third brother took an arsenal of weapons to a state prison and facilitated the escape of their father and his cellmate, both convicted murderers. Raymond Tison admitted he was prepared to kill in furtherance of the prison break. When their getaway car had a flat tire he flagged down a passing car occupied by an innocent family, thereby entrusting their fate to the known killers he had previously armed. Both brothers participated in the kidnapping and robbery of the family, and were nearby when their father and his cellmate shot and killed the four victims; neither brother made any effort to assist the victims before, during, or after the shooting. (Tison, supra, 481 U.S. at pp. 151-152.) Characterizing the brothers’ personal involvement in these crimes as substantial, the Supreme Court said, “Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each [defendant] was actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight. The Tisons’ high level of participation in these crimes further implicates them in the resulting deaths.” (Id. at p. 158.) As for their mental state, the court said, “These facts not only indicate that the Tison brothers’ participation in the crime was anything but minor, they also would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life.” (Id. at p. 152.)
We also find guidance in People v. Bustos (1994) 23 Cal.App.4th 1747, which illustrates evidence sufficient to support a section 190.2(d) special circumstance finding. Defendant and his accomplices planned to rob a woman whom they saw at the beach and take her car. Defendant knew one of his accomplices had a knife. Defendant followed the woman into a rest room, hit her in the face, and took her purse. When she screamed, his accomplice ran in and stabbed her twice. Defendant admitted he saw the stabbing and did not claim he was surprised by or attempted to prevent it. He and his accomplices took the victim’s purse and left her to die; they drove away in her car and pawned her rings. The court held this evidence established that defendant was a major participant who acted with reckless indifference to life. It reasoned that defendant participated fully in the robbery and watched the killing, after which he chose to aid those whom he placed in the position to kill rather than help the victim. (Bustos, supra, at pp. 1753-1755.)
Also instructive is People v. Mora (1995) 39 Cal.App.4th 607, in which defendant and codefendant planned an armed robbery of a drug dealer. Defendant, an acquaintance of the dealer, gained entry to the latter’s home for the ostensible purpose of buying drugs. Codefendant then entered with a rifle. The dealer resisted and during the struggle, codefendant shot him in the chest. The dealer fell to his knees, defendant pushed him to the floor, and codefendant shot him in the back. Defendant took the dealer’s monev and marijuana. (Id. at p. 611.)
Defendant and codefendant were convicted of first degree murder with a felony murder special circumstance. Defendant moved for new trial, arguing the evidence was insufficient to show he acted with reckless indifference to human life. The court denied the motion, but relying on People v. Dillon, supra, 34 Cal.3d 441, reduced the offense to first degree “ordinary” murder. (People v. Mora, supra, 39 Cal.App.4th at pp. 612-613.) The appellate court modified the judgment to impose life without possibility of parole. It held that a trial court has no power to strike a special circumstances finding and that life without possibility of parole was not an unconstitutionally disproportionate sentence. In so holding, the appellate court commented that the evidence was ample to support the special circumstance finding. Defendant helped plan the robbery and was instrumental in arranging for codefendant to enter the home with a rifle. “Defendant had to be aware of the risk of resistance to such an armed invasion of the home and the extreme likelihood death could result. [Citation.] According to defendant’s own statement he did not know whether [one of the victims] was dead or alive. He did not attempt to aid the victim but instead carried through with the original plan to steal the victim’s drugs. Defendant personally carried away the loot, left the victim there to die, and threatened the remaining victim . . . .”admitted into evidence at the jury trial, but instead was offered at the sentencing hearing in support of his request that the sentence be reduced pursuant to Dillon.(Mora, supra, at pp. 614-618.)
In contrast, in Jackson v. State (Fla. 1991) 575 So.2d 181, the Florida Supreme Court held that although the evidence showed that defendant was a major participant in the crime, it did not show that his state of mind demonstrated reckless indifference to human life. The evidence established that defendant and his brother robbed a hardware store and that one of them shot and killed the owner during the robbery. There was no evidence to show that defendant personally possessed or fired the weapon or harmed the victim. There was no evidence he intended to harrn anyone when he entered the store or expected violence to erupt during the robbery. There was no real opportunity to prevent the murder since the crime took only seconds and was committed by a sudden, single gunshot. Under the facts, to hold that defendant’s state of mind was culpable enough to rise to the level of reckless indifference to human life would be equivalent to finding that state of mind present in every felony murder. (Id. at p. 192.)
With that background, we assess the sufficiency of the evidence in this case. We are mindful that we must view that evidence in the light most favorable to the judgment and presume the existence of every fact the fact finder reasonably could deduce from that evidence. ( People v. Iniguez (1994) 7 Cal.4th 847, 854.) But a reasonable inference may not be based on conjecture, guesswork, or suspicion. A finding of fact must be an inference reasonably drawm from evidence, not a speculation as to the probabilities without evidence. (People v. Raley (1992) 2 Cal.4th 870, 891.) Moreover, it is fundamental that our review is limited to the evidence presented to the fact finder, in this case the jury. Matters not admitted into evidence may not be considered by an appellate court in assessing the sufficiency of the evidence to support the judgment. (People v. Pearson (1969) 70 Cal.2d 218, 221-222, fn. 1; see People v. Jackson (1992) 7 Cal.App.4th 1367, 1373.)
Considered in the light most favorable to the judgment, the evidence and the reasonable inferences from the evidence admitted at trial against McMullen unquestionably established that he, Wilson, and Timms went to the Jack-In-The-Box to commit a robbery and that Wilson knew Timms had the gun when they left for the restaurant. What McMullen knew about the gun, however, was less clear. The Attorney General argues that the jury reasonably could have inferred from McMullen’s agreement to take part in the robbery that he also knew Timms was armed with some weapon, simply because someone had to be armed for the robbery to take place. But even if that inference is reasonable, there was no substantial evidence admitted against McMullen to support the additional inference that he knew before Timms fired the first shot that the weapon was a gun, that the gun was loaded, or that Timms was likely to shoot. The Attorney General’s speculation or conjecture about what McMullen actually knew is not substantial evidence.
Both in Mora and Bustos, the defendants were physically present in the room where the killing occurred. and they struck or struggled with the victim even though they did not personally inflict the fatal injury. (People v. Mora, supra, 39 Cal.App.4th at p. 611; People v. Bustos, supra,23 Cal.App.4th at p. 1753.) In contrast, in this case McMullen remained outside at the drive-through window while Timms went inside, and there was no evidence McMullen saw the shooting or realized that Timms had shot anyone until later. According to the surviving victims, Timms fired a warning shot and ordered them to give him the money. Varcas unlocked the register and McMullen’s hands reached through the window and grabbed the money. Suddenly, without comment and for no apparent reason, Timms quickly fired again three times, killing Prado and injuring the other two employees. But there was no substantial evidence that McMullen realized what happened or that he should have anticipated that shooting or could have prevented it. We have not overlooked tile evidence that McMullen later divided the proceeds of the robbery and hid the gun. But even if that evidence supports a conclusion that McMullen was a major participant in the robbery itself, it does not establish that he had a subjective awareness that his participation involved a grave risk of death. Because the evidence was insufficient to support a finding that his state of mind was sufficiently culpable to constitute reckless indifference to life, the special circumstance finding must be set aside. Retrial of the allegation is barred by constitutional protections against double jeopardy. (See People v. Garcia (1984) 36 Cal.3d 539, 558, fn. 13.)
Our conclusion makes it unnecessary to consider McMullen’s claims that the jury was not instructed correctly on the elements of the special circumstance or that imposition of life without possibility of parole violated either ex post facto principles or the prohibition against cruel and unusual punishment.
The judgment as to appellant Timms is affirmed in its entirety. As to appellant McMullen, his convictions of first degree murder and assault are affirmed, but the finding of a special circumstance under Penal Code section 190.2(d) is set aside and may not be retried; the matter is remanded for resentencing.