Filed 6/6/22 P. v. Bobo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Los Angeles County Superior Court, Laura C. Ellison, Judge. Reversed with directions.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin, Michael Katz and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

In 1982, a jury convicted Albert Bobo of first degree murder under the felony murder doctrine. Decades later, Bobo petitioned for resentencing under Penal Code[1] section 1170.95, arguing that he was not a major participant in the crime who acted with reckless indifference to human life. (See generally People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).) The trial court disagreed and denied the petition after an evidentiary hearing. We now conclude that there was insufficient evidence to support the reckless indifference to human life finding.

BACKGROUND

I. The murder and Bobo’s conviction[2]

In March 1982, Bobo was 16 years old. One evening that March, Bobo, Isiah Smith, and John Williams were at a park. The three men approached Angelus Wilson, and Smith and Wilson discussed “making a jack,” referring to robbery. Smith showed Wilson a handgun Smith had in his waistband. Bobo, Smith, and Williams then asked another man, Darryl Conerly, to be their lookout while they robbed a nearby self-service car wash. Conerly agreed.

The men proceeded with their plan. Conerly stayed back while Bobo, Smith, and Williams approached victim Daniel Hernandez, who was washing his car. Something was said, and Hernandez tried to spray water on Smith, who then fired three times at Hernandez, killing him. Bobo and the others fled, encountering Wilson, who agreed to drive the men away. In the car, Conerly asked how much money had been taken, and Bobo answered with an amount. According to Conerly, Bobo had Hernandez’s wallet but threw it out the car window. On the day he was murdered, Hernandez had $300 in cash in an envelope.

The empty envelope was found on the dashboard of his truck. A witness saw three young men, including Bobo, approach the car wash, shout “Raymond Crips,” and flee after shots were fired.

A jury found Bobo guilty of first degree murder (§ 187, subd. (a)) with a finding that a principal was armed (§ 12022, subd. (a)), robbery (§ 211) with a finding that a principal was armed (§ 12022, subd. (a)), and conspiracy to commit robbery (§§ 182, 211). In 1983, the trial court sentenced Bobo on the murder count to 25 years to life plus one year for the weapon enhancement. Sentences on the remaining counts were stayed under section 654.

His judgment of conviction was thereafter affirmed on appeal. (People v. Albert Bobo (Aug. 15, 1984, 44504) [nonpub. opn.].)

II. Bobo petitions for resentencing

Bobo petitioned for resentencing in 2019, but the trial court summarily denied the petition. Bobo appealed that order, and we reversed and directed the trial court to issue an order to show cause. (People v. Albert Bobo (Nov. 17, 2020, B303305) [nonpub. opn.].)[3] At the 2021 evidentiary hearing, the parties did not introduce any new evidence, and the People submitted on their papers, which included the information, the 1984 Court of Appeal opinion, the reporter’s transcript from Bobo’s 1983 sentencing hearing, and the probation report.

After argument, the trial court concluded that Bobo was ineligible for resentencing because he was a major participant in the crime who acted with reckless indifference to human life. In support of its conclusion, the trial court cited that the participants were members of the same gang and knew each other before committing the crimes together. Also, Bobo knew there would be a robbery and that there was a gun and was present during the crimes as a show of force. There was no evidence that Bobo tried to dissuade Smith from pulling out the gun or firing at the victim. And, as the victim lay dying, circumstantial evidence suggested it was Bobo who took the victim’s wallet and later disposed of it. In any event, Bobo did not try to help the victim and instead fled in a car. The trial court also noted that others involved in the crime were not as active in it; for example, Conerly stayed back and did not actively participate.

Bobo now appeals the order denying his section 1170.95 petition.

DISCUSSION

I. Section 1170.95 and the petitioning procedure

Senate Bill No. 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).) To that end, and as relevant here, Senate Bill No. 1437 amended the felony-murder rule by adding section 189, subdivision (e), which now provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (Gentile, at p. 842.)

Senate Bill No. 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now-invalid felony-murder (or natural and probable consequences) theory may petition to vacate their convictions and for resentencing. Where, as here, the petitioner has made a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and then “hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra, 11 Cal.5th at p. 960.) In making that determination, the prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence. (§ 1170.95, subd. (d)(3); Lewis, at p. 960.) At the subdivision (d) hearing, the prosecution has the burden to prove the petitioner’s ineligibility beyond a reasonable doubt. (§ 1170.95, subd. (d)(3).)

On appeal, we review the trial court’s determinations at the section 1170.95, subdivision (d)(3), evidentiary hearing for substantial evidence. (People v. Clements, supra, 75 Cal.App.5th at p. 298.)

II. Sufficiency of the evidence that Bobo acted with reckless indifference to human life

Bobo contends that the trial court erred by denying his section 1170.95 petition because there was insufficient evidence to support its conclusion that he acted with reckless indifference to human life. As we now explain, we agree.

1. What it means to be a major participant who acts with reckless indifference to human life

This area of law regarding what it means to be a major participant in a crime who acts with reckless indifference to human life has its genesis in two United States Supreme Court cases: Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137. Enmund held that the death penalty could not constitutionally be imposed on an armed robbery getaway driver who was a minor participant in the crime, was not present when the murder was committed, and had no intent to kill. (Enmund, at pp. 798, 801.)

Tison v. Arizona, supra, 481 U.S. at page 139, in contrast, did not preclude imposing the death penalty for two defendants, brothers, who had helped their father and his cellmate—both convicted murderers—escape from prison. The defendants gave them guns, and the group later kidnapped a family of four. The defendants then stood by while their father debated whether to kill the family and proceeded to shoot the family, including a toddler and a teenager. (Id. at pp. 139–141.) The court held that the Eighth Amendment does not prohibit imposing the death penalty on a nonkiller who lacked the intent to kill, but whose “participation [in the crime] is major and whose mental state is one of reckless indifference to the value of human life.” (Tison, at p. 152; see also id. at pp. 157–158.)

Years later, in Banks and Clark, our Supreme Court addressed Enmund and Tison and clarified the “major participant” and “reckless indifference to human life” requirements. Banks, supra, 61 Cal.4th at page 794, considered “under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant.” The court listed various factors that should be considered in making that determination: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Id. at p. 803, fn. omitted.)

Our California Supreme Court then turned its attention to “reckless indifference to human life” in Clark. Reckless indifference to human life is “ ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.) It “encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Id. at p. 617.) Recklessness has both a subjective and an objective component. (Ibid.) Subjectively, the defendant must consciously disregard risks known to him. Objectively, recklessness is determined by “what ‘a law-abiding person would observe in the actor’s situation,’ ” that is, whether defendant’s conduct “ ‘involved a gross deviation from the standard of conduct that a law-abiding person in the actor’s situation would observe.’ ” (Ibid.)

Clark listed factors to consider when determining whether reckless indifference existed: “Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant’s knowledge of his or her confederate’s propensity for violence or likelihood of using lethal force?  What efforts did the defendant make to minimize the risks of violence during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677 [summarizing Clark factors].)

Here, Bobo does not address whether he was a major participant in the crime. (See, e.g., Clark, supra, 63 Cal.4th at p. 614 [unnecessary to decide major participant prong if evidence insufficient on reckless indifference prong].) He instead focuses on whether he acted with reckless indifference to human life, so we too focus next on that issue, cognizant that the Bank/Clark factors overlap.

2. Reckless indifference to human life

We first consider what Bobo’s role was in planning the robbery. The evidence shows he did play some role in planning it, because he, Smith, and Williams approached Wilson at the park, apparently to see if Wilson wanted to join their scheme. However, it was Smith and Wilson who directly discussed the “jack,” and it was Smith who had a gun. Bobo, Smith, and Williams asked Conerly to be their lookout. Bobo therefore did participate in planning the robbery, although there is no evidence that murder and lethal force were part of the plan.

Next, while there is no evidence that Bobo or Williams were armed with a weapon, Smith was armed with a gun. There is no evidence that Bobo supplied that gun, which weighs against finding reckless indifference to human life. (See, e.g., In re Moore (2021) 68 Cal.App.5th 434, 452 [although defendant knew that accomplice had a gun, defendant didn’t supply it and didn’t use one].) But because Smith showed Wilson the gun while the men were at the park, the evidence supports a finding that Bobo knew Smith had a gun. Still, Bobo’s knowledge that Smith was armed and that lethal force might be used is insufficient to establish reckless indifference to human life. (See, e.g., Clark, supra, 63 Cal.4th at p. 618 [mere fact defendant knows gun will be used is insufficient to establish reckless indifference to human life]; Banks, supra, 61 Cal.4th at p. 809; People v. Ramirez (2021) 71 Cal.App.5th 970, 988 (Ramirez); contra, People v. Bascomb (2020) 55 Cal.App.5th 1077, 1089 [defendant used his gun to threaten and keep victims at bay, thereby actively enabling the murder and exhibiting reckless indifference].) Thus, even assuming Bobo knew that Smith intended to rob Hernandez with a gun, that fact does not, by itself, establish the requisite mental state.

As for whether Bobo knew that Smith was likely to use the gun or had a propensity for violence, no evidence speaks to that issue. Although the trial court noted that Bobo, Smith, and Williams were members of the same gang, this does not show that Smith had a history of violence and that Bobo knew of any such history. Instead, gang membership alone does not demonstrate a propensity to commit lethal violence. (See Banks, supra, 61 Cal.4th at pp. 810–811; In re Miller (2017) 14 Cal.App.5th 960, 976 [although defendant and killer belonged to same gang and had committed follow-home robberies together, no evidence indicated they had ever participated in shootings, murder, or attempted murder].)

Next, Bobo’s presence at the murder is a particularly important aspect of the inquiry. (See, e.g., People v. Garcia (2020) 46 Cal.App.5th 123, 148.) Although a survey of cases shows that defendants who were not at the crime scene are more likely to be found not to have the requisite mental state (see, e.g., People v. Law (2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490 [“we are not aware of a single case” that concludes a defendant who personally committed a robbery, used a gun, and was present for the shooting did not meet the reckless indifference standard]), presence at the crime scene does not mandate a conclusion that the defendant acted with reckless indifference. (See, e.g., Ramirez, supra, 71 Cal.App.5th at pp. 975, 978, 989 [defendant who was present when accomplice shot victim did not act with reckless indifference].)

Instead, the sparse facts here are that the three men, including Bobo, approached Hernandez. Somebody—the evidence does not show who—said something to Hernandez,[4] causing Hernandez to spray water on Smith. Smith then shot Hernandez three times. Although it is unclear how long it took for these events to transpire, it was not long. In contrast, when a victim is held at gunpoint or restrained for prolonged periods, generally there is a greater opportunity for violence. (Clark, supra, 63 Cal.4th at p. 620.) But here, when Hernandez sprayed Smith with water, it appears that Smith immediately shot Hernandez, giving Bobo no opportunity to restrain Smith or to protest what could have been a spontaneous use of lethal force executed at a rapid pace. Therefore, while we would not equate Bobo to a getaway driver whose physical absence from the crime scene makes restraining an accomplice a physical impossibility, the evidence does not show that Bobo, notwithstanding his presence at the crime scene, had a meaningful opportunity to restrain Smith. (See, e.g., In re Scoggins, supra, 9 Cal.5th at p. 679 [quickness of shooting suggested defendant lacked control over accomplices’ actions]; In re Moore, supra, 68 Cal.App.5th at p. 452 [defendant present during robbery but not “ ‘close enough’ ” to restrain shooter]; compare Ramirez, supra, 71 Cal.App.5th at p. 989 [defendant lacked meaningful and realistic opportunity to intervene when he and shooter were on opposite sides of victim’s vehicle, and attempted carjacking was quickly executed], with In re Loza (2017) 10 Cal.App.5th 38, 51, 53 [petitioner who was in store where killing occurred had time to observe and react before murder because he heard killer threaten to shoot clerk and count to five before doing so].)

This case is distinguishable from In re Harper (2022) 76 Cal.App.5th 450. In that case, the 16-year-old defendant went with Brown, who was armed with a shotgun, and Rogers to rob a store. Brown and Rogers took the store’s owner to the bathroom, and the defendant stayed at the front of the store, acting as a lookout. When Rogers asked where the knives were, the defendant directed her to the correct aisle, even though he wondered if she was going to stab the victim. (Id. at p. 457.) Even when the defendant heard pounding and yelling coming from where the victim was being held, the defendant did nothing. During the crime, the defendant told Brown that he was fine with whatever Brown wanted to do so long as he (the defendant) was not involved. Thus, unlike our case, the In re Harper defendant knew or suspected that his accomplices intended to use lethal force, facilitated the use of that force by directing Rogers to the knives, and declined opportunities to help the victim or at least attempt to restrain his accomplices.

Next, no evidence speaks to whether Bobo tried to minimize the risk of violence during the felony. There is no evidence about what Bobo said, if anything, while planning the robbery. It is unknown whether he or the others thought robbing someone at an outdoor car wash where other people likely would be present would lessen or heighten the risks. This factor is therefore neutral.

However, a factor that does weigh in favor of finding reckless indifference is what Bobo did after Hernandez was shot. First, the evidence suggests Bobo took the dying man’s wallet and money, because while fleeing in the car Bobo had the wallet and knew how much money had been stolen from Hernandez. Second, instead of helping Hernandez, Bobo took his wallet, indifferently elevating money over Hernandez’s life. A defendant’s failure to aid a wounded victim shows reckless indifference. (Clark, supra, 63 Cal.4th at p. 619; In re Parrish (2020) 58 Cal.App.5th 539, 544 [reckless indifference shown by failure to pause to aid or comfort victim]; People v. Douglas (2020) 56 Cal.App.5th 1, 10 [petitioner “displayed no interest in moderating violence or in aiding his bloody and suffering victim,” and instead picked his pocket].)

Even if Bobo was callously uncaring that the robbery had turned lethal, Banks and Clark demand a showing that he knowingly created a serious risk of death, and therefore, his behavior after Hernandez was shot, standing alone, is insufficient to show he acted with reckless indifference to human life while participating in the robbery. (See, e.g., In re Taylor (2019) 34 Cal.App.5th 543, 560.) Even evidence that a defendant failed to aid the victim and laughed with his accomplices soon after the shooting may be insufficient to support a finding of reckless indifference to human life, especially where the defendant was young, 16 years old. (In re Moore, supra, 68 Cal.App.5th at p. 453.)

This brings us to the final factor, Bobo’s age—16 years old—when he committed the crimes. Our United States Supreme Court has observed that the hallmark features of youth include immaturity, impetuosity, and the failure to appreciate risks and consequences, making juveniles more susceptible to peer pressure than adults. (Miller v. Alabama (2012) 567 U.S. 460, 471.) Accordingly, courts have found that a “juvenile’s immaturity and failure to appreciate the risks and consequences of his or her actions bear directly on the question whether the juvenile is subjectively ‘ “aware of and willingly involved in the violent manner in which the particular offense is committed” ’ and has ‘consciously disregard[ed] “the significant risk of death his or her actions create.” ’ ” (Ramirez, supra, 71 Cal.App.5th at p. 991.)

Although the trial court here made no mention of Bobo’s youth in ruling on the section 1170.95 petition, it was a relevant factor to consider, with the other Banks/Clark factors. (See, e.g., In re Harper, supra, 76 Cal.App.5th at p. 470;[5] Ramirez, supra, 71 Cal.App.5th at p. 991; People v. Harris (2021) 60 Cal.App.5th 939, 960, review granted on another point Apr. 28, 2021, S267802.) There was no direct evidence about how Bobo’s youth might have concretely intersected with his mental state, as was the case in Ramirez, at page 991, where the evidence showed that peer pressure influenced the defendant. Even so, this factor does weigh against finding Bobo harbored reckless indifference to human life.[6]

Considering the totality of the factors, we cannot find that there was sufficient evidence to support the trial court’s finding of reckless indifference to human life. There is no evidence that Bobo intended to participate in anything but a robbery, even though he knew a gun would be used. There is no evidence that Bobo himself was armed. Although present during Hernandez’s murder, the shooting appears to have been spontaneous, occurring so quickly that Bobo had no meaningful opportunity to restrain Smith. While the evidence suggests Bobo proceeded to take Hernandez’s wallet after Hernandez had been shot and did not aid Hernandez, we cannot find that these after-the-fact-of-the-shooting actions are enough to establish the requisite mental state, especially when considered with the overlay of Bobo’s young age when he committed the crimes. We therefore conclude that the trial court should have granted Bobo’s petition for resentencing.

DISPOSITION

The order denying Bobo’s section 1170.95 petition is reversed with the direction to the trial court to vacate Bobo’s murder conviction and to resentence him on the counts for robbery and conspiracy to commit robbery in accordance with section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

KIM, J.*

[1] All further undesignated statutory references are to the Penal Code.

[2] In the trial court and on appeal, the parties chose to rely on the factual summary in the 1984 opinion affirming the judgment of conviction, with Bobo contending that it was nonetheless insufficient to sustain the trial court’s finding that he was a major participant in the crime who acted with reckless indifference to human life. As no party addresses whether the trial court properly considered that opinion or any other matter before it, we do not address such issues. (See generally § 1170.95, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 292 [trial judges should not rely on factual summaries in prior appellate decisions at § 1170.95, subd. (d)(3) hearings].)

[3] We have granted Bobo’s request for judicial notice of the clerk’s transcript in case No. B303305, which includes the 1984 Court of Appeal opinion affirming his judgment of conviction.

[4] A witness heard “Raymond Crips” yelled, but it is unclear when it was yelled and if one or more of the men yelled it.

[5] While In re Harper agreed that youth is a relevant factor to consider, it disagreed with In re Moore, supra, 68 Cal.App.5th 434, to the extent In re Moore could be understood to hold that youth is the decisive factor. We have no occasion here to wade into the dispute.

[6] At the 1983 sentencing hearing, Bobo’s counsel advocated for his client to be sent to the California Youth Authority rather than prison, stating that Bobo lacked insight and was immature. Relying on a probation department evaluation, the People argued that Bobo was entrenched in the criminal lifestyle. The sentencing court adopted the findings of the evaluation.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.