Filed 8/22/22 In re Owens CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Kenneth Oliver Owens, Jr., guilty of murder in 2011 based on his participation in a robbery in which a cohort shot and killed a victim. The jury also found true a felony-murder special circumstance. (Pen. Code, § 190.2, subd. (a)(17).)[1] In this petition for a writ of habeas corpus, defendant challenges the validity of the special circumstance, arguing that substantial evidence does not support that he was a major participant in the robbery who acted with reckless indifference to human life. We agree, in part, and grant the petition.

I. BACKGROUND

The facts of this case are set forth in our unpublished opinion in defendant’s direct appeal, People v. Owens (Sept. 24, 2013, C069838) [nonpub. opn.] (Owens). We reiterate these facts where relevant to the petition, incorporating additional facts from the record where necessary.[2] (See In re Taylor (2019) 34 Cal.App.5th 543, 556-557 [considering factual discussion in opinion from direct appeal and “other germane parts of the record” from that appeal].)

A. The Robbery and Burglary

Roommates Eric and Derek were having dinner in their apartment on the evening of Friday, March 26, 2010, when they heard a knock on the door. (Owens, supra, C069838.) Erin thought it was their friend, Salvador-Heredia-Arriaga (the eventual murder victim), who was going to take him to a bar. (Ibid.) Instead, two armed men came into the apartment. (Ibid.)

The first man was defendant’s cousin, Maurice Reed. (Owens, supra, C069838.) Reed had been to the apartment a week before, to buy marijuana from Erin. (Ibid.) On this occasion, however, Reed carried a revolver. (Ibid.) The second man was Dejon Murray, then 17. (Ibid.) Murray had been to the apartment two days before, with defendant. (Ibid.) This time, Murray carried a semiautomatic handgun. (Ibid.)

Defendant was not present when Reed and Murray entered the apartment. (Owens, supra, C069838.) However, he had previously lived in the same apartment complex and had been to Derek and Erin’s apartment before, both to buy marijuana and socialize with Erin. (Ibid.)

Reed and Murray barked orders and threatened Derek and Erin. (Owens, supra, C069838.) They gathered marijuana, cash, video games, and equipment and herded Erin and Derek into the bathroom. (Ibid.) They told Erin and Derek to wait for four minutes while they made their escape. (Ibid.)

While in the bathroom, Erin heard the front door open. (Owens, supra, C069838.) Erin realized that it was Heredia-Arriaga. (Ibid.) He yelled, “ ‘Sal, give it up. We are being robbed.’ ” (Ibid.) Erin and Derek heard scuffling, and then one gunshot. (Ibid.) When they emerged from the bathroom, they discovered Heredia-Arriaga on the floor. (Ibid.) Heredia-Arriaga died from a gunshot wound to the chest. (Ibid.)

B. Evidence at Trial

Erin had a medical marijuana card and kept approximately 15 grams of marijuana in a Mason jar in the kitchen. He purchased marijuana from a cannabis club and sold it to friends, who would come to his apartment to smoke and play video games. Erin knew defendant from the apartment complex. Defendant would come over to play games sometimes, and Erin tried to maintain a cordial relationship with him. Erin understood that defendant sold bags of marijuana from his bicycle. Defendant approached Erin on several occasions with proposals to go into business together. Erin rebuffed these overtures. Erin explained: “[Defendant] thought I was some big-time drug dealer or something, but I told him, no, I’m not. He’d always just talk about going in half on this, but I didn’t have money like that.”

Defendant’s girlfriend heard defendant call Reed on the night of the shooting. (Owens, supra, C069838.) Defendant told Reed he had a “lick,” meaning a robbery. (Ibid.) Defendant mentioned that the victim, who apparently lived at his former apartment complex, had money, a plasma TV, and an Xbox. (Ibid.) Defendant told Reed to meet him somewhere near the apartment complex. (Ibid.)

T.R. is Reed’s sister, defendant’s cousin, and the girlfriend of a good friend of Murray’s. (Owens, supra, C069838.) On the night of the shooting, T.R. was at a party for her boyfriend, which Reed and Murray also attended. (Ibid.) Reed asked T.R. to drive him to get some marijuana. (Ibid.) As they were leaving the party, they saw Murray. (Ibid.) T.R. saw another man hand Murray an object wrapped in a white shirt. Murray went inside for a moment and then returned to the car. The trio started driving, taking directions from someone over the phone.

The group subsequently rendezvoused with defendant. (Owens, supra, C069838.) They followed defendant’s car to an apartment complex, where they all parked. (Ibid.) Defendant told Reed and Murray to knock on a certain door and provide some sort of password or code. (Ibid.) Reed and Murray left. Defendant stayed in the parking lot, talking to T.R. (Ibid.) Then he walked off, in the same general direction as Reed and Murray. (Ibid.)

Defendant returned five minutes later, walking rapidly to his car and driving off in a hurry. (Owens, supra, C069838.) T.R. called defendant on his phone. Defendant said Reed and Murray would be out in a minute. Reed appeared two minutes later, jumping in T.R.’s car and saying “Go, go, go.” (Ibid.) As they were pulling away, they saw Murray. They stopped, and Murray fell into the backseat with a gun in one hand and a PlayStation in the other. (Ibid.) T.R. saw defendant’s car ahead of hers as she drove. He was driving fast and ran a red light to get onto the freeway.

T.R. drove Murray and Reed to her apartment. (Owens, supra, C069838.) Defendant joined them five to 10 minutes later. (Ibid.) Reed gave a gun to Murray, which was unlike the gun T.R. had seen Murray with as they made their getaway. (Ibid.) The men argued. Reed said to Murray, “ ‘You shot [him]. You shot [him].’ ” Murray responded, “ ‘He was wrestling with you [(i.e., Reed)]. What was I supposed to do?’ ” Defendant said, “ ‘That’s on you all.’ ” Eventually, they divided the loot into three piles, and each man took a share.

In a jailhouse interview with a local television reporter, Reed stated that he went to the apartment to rob Erin and Derek, not to kill them. (Owens, supra, C069838.) Reed also wrote a letter of apology to the Heredia-Arriaga family. (Ibid.)

Murray presented evidence that he has an IQ of 69 and overall intellectual functioning closer to 75. (Owens, supra, C069838.) Murray also suffered an accident some years before the shooting, which left him visually impaired. His aunt testified that defendant and Reed got Murray “ ‘all liquored up and all drugged up’ ” and took him to the robbery. (Ibid.) Murray’s aunt also testified that defendant was responsible for planning the robbery. (Ibid.)

C. Verdict, Findings, and Sentence

Three separate juries respectively found defendant, Reed, and Murray guilty of first-degree felony murder with special circumstances (committed in the course of a robbery and burglary). (§§ 187, subd. (a)—count one, 190.2, subd. (a)(17).) (Owens, supra, C069838.) The juries also found them guilty of two counts of robbery in concert and one count of burglary. (§§ 211—count two, 213, subd. (a)(1)(A)—count three, 459—count four.) (Owens, supra, C069838.) The juries found that Murray and Reed personally used firearms in the commission of these offenses, while defendant was vicariously armed. (§§ 12022.53, subd. (b), 12022, subd. (a)(1).) (Owens, supra, C069838.)

Defendant was sentenced to state prison for life without the possibility of parole for the murder conviction, plus an additional year for the firearm enhancement. Defendant was also sentenced to a consecutive term of six years for one of the two robbery convictions, and a consecutive term of two years for the other. The sentences on the burglary conviction and remaining firearm enhancements were stayed.

D. Appeal and Habeas Petition

Another panel of this court affirmed the judgments as to defendant and Reed and reversed the judgment as to Murray.[3] (Owens, supra, C069838.) The California Supreme Court denied defendant’s petition for review on January 15, 2014.

After defendant’s conviction was final, the Supreme Court issued its opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of the special circumstance statute. The Supreme Court then held that defendants could challenge the sufficiency of the evidence of pre-Banks and Clark felony-murder special circumstance findings by means of habeas petitions. (In re Scoggins (2020) 9 Cal.5th 667, 673-674 (Scoggins).)

Defendant filed a habeas petition in the trial court in July 2020, challenging the sufficiency of the evidence for the special circumstance finding. The trial court denied the petition. Defendant filed the instant petition in June 2021. We solicited an informal response, and then issued an order to show cause.

II. DISCUSSION

Defendant challenges the sufficiency of the evidence to support the jury’s special circumstance finding under the guidance articulated in Banks and Clark. We conclude there was insufficient evidence that defendant exhibited reckless indifference to human life.

A. Applicable Law and Standard of Review

Murder committed in the perpetration of a robbery or a burglary is first degree murder. (§ 189, subd. (a).) Once convicted of first-degree murder, an accomplice who was “not the actual killer” may be sentenced to life without the possibility of parole if a special circumstance is true. (§ 190.2, subds. (c), (d).) As relevant here, the accomplice must be “a major participant” in the robbery or the burglary who acted “with reckless indifference to human life.” (§ 190.2, subds. (d), (a)(17)(A), (G); Banks, supra, 61 Cal.4th at p. 798.) The law “thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.” (Banks, supra, at p. 798. ) These requirements significantly overlap, because the greater the accomplice’s participation, the more likely he or she acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 615.)

Our Supreme Court clarified the meaning of these requirements in Banks and Clark. Banks considered “under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant.” (Banks, supra, 61 Cal.4th at p. 794.) The high court identified various factors that should be considered in making that determination, including: “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 defendants? 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.) Applying these factors, the Banks court found the evidence was insufficient to show the defendant there—a getaway driver for an armed robbery of a marijuana dispensary—was a major participant, where there was no evidence establishing his role in planning the robbery or procuring weapons, and no evidence he was present for the robbery or played a role in instigating the shooting. (Id. at pp. 805, 807-808.)

Our Supreme Court considered the “reckless indifference” determination in Clark. (Clark, supra, 63 Cal.4th at pp. 610-623.) Reckless indifference to human life is “ ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’ ” (Id. 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. 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.) The fact a robbery involved a gun or carried a risk of death is insufficient, by itself, to support a finding of reckless indifference. (Id. at pp. 617-618; see also Scoggins, supra, 9 Cal.5th at p. 677 [“ ‘the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used’ is not sufficient to establish reckless indifference to human life”].)

Clark, like Banks, identified various factors to be considered in determining whether the defendant acted with reckless indifference. (Clark, supra, 63 Cal.4th at pp. 618-623.) These include: “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 risk of violence during the felony?” (Scoggins, supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark, supra, at pp. 618-623].) Applying these factors, the Clark court found the evidence was insufficient to show the defendant acted with reckless indifference to human life in the armed robbery of a computer store where he planned the robbery, but was not armed or physically present in the store when the victim was shot, did not have the intent to kill, and attempted to minimize the likelihood of violence by timing the robbery for a time when fewer people would be present and using an unloaded gun. (Clark, supra, at pp. 611, 618-623.)

The Supreme Court revisited the reckless indifference inquiry in Scoggins. The high court explained that “a defendant’s culpability under the special circumstances statute requires a fact-intensive, individualized inquiry.” (Scoggins, supra, 9 Cal.5th at p. 683.) The crux of that inquiry is “[t]he degree of risk to human life,” and only evidence suggesting an “ ‘elevated risk . . . beyond those risks inherent in any armed robbery’ ” is sufficient to establish reckless indifference to human life. (Id. at p. 682.) Applying this standard, the court found the evidence insufficient to support a robbery-murder special circumstance finding, where the defendant planned an unarmed assault and robbery, in which one of his accomplices unexpectedly killed the victim. (Id. at p. 671.) Although the defendant knew about his accomplices’ violent tendencies and instructed them “to ‘beat the shit out of’ ” the victim, he did not instruct them to kill the victim, did not know that a gun would be used, and was not physically present at the crime scene. (Id. at pp. 677-679, 681, 683.) The Scoggins court considered the limited duration of the interaction between the shooter and the victim, and the location of the robbery “in a public parking lot during the daytime,” (id. at p. 683) and concluded that the evidence did not suggest “ ‘an elevated risk to human life beyond those risks inherent in an unarmed beating and robbery’ ” (id. at p. 682). (See id. at p. 680.)

The Scoggins court also clarified that a defendant whose special circumstance determination predates Banks and Clark may challenge the sufficiency of the evidence of the finding by means of a habeas corpus petition. (Scoggins, supra, 9 Cal.5th at pp. 673-674.) A defendant in this position is entitled to habeas relief “ ‘ “if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct.” ’ ” (Id. at p. 674.)

“To determine whether the evidence supports a special circumstance finding, we must review ‘ “the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable jury could find” ’ the special circumstance allegation true ‘ “beyond a reasonable doubt.” ’ ” (People v. Becerrada (2017) 2 Cal.5th 1009, 1028.) “ ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57.) “An inference is not reasonable if it is based only on speculation.” (People v. Holt (1997) 15 Cal.4th 619, 669.) “Similarly, a reasonable inference may not be based on mere suspicion, imagination, supposition, surmise, conjecture, or guesswork.” (In re Ramirez (2019) 32 Cal.App.5th 384, 404-405 (Ramirez).)

B. Analysis

Defendant challenges the sufficiency of the evidence supporting both the determination that he was a major participant in the robbery and burglary, and the determination that he acted with reckless indifference to human life. Applying the Clark factors, we conclude substantial evidence does not support the determination that defendant acted with reckless indifference to human life. (See Clark, supra, 63 Cal.4th at p. 615.) As a result, we need not decide whether substantial evidence supports the determination that defendant was a major participant in the robbery and burglary. (Id. at p. 614 [“we need not decide whether, under the circumstances of this case, defendant was a major participant . . . because, as discussed below, we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life”].)

1. Defendant’s Knowledge That Weapons Would Be Used During the Robbery

For the first Clark factor, we analyze the evidence regarding defendant’s awareness that a lethal weapon would be used, whether defendant personally used a lethal weapon, and the number of lethal weapons used. (Clark, supra, 63 Cal.4th at p. 618.) No evidence establishes that defendant personally used a weapon or played any role in supplying weapons to Reed or Murray. Nor does any evidence necessarily show that defendant knew Reed and Murray had guns or planned to use them.

The People argue jurors could have reasonably inferred that defendant knew Reed and Murray had guns, because the robbery plan, which defendant devised, called for them to commit a home invasion robbery of a “known drug dealer” on a Friday night.[4]

Even assuming arguendo that such an inference was reasonable, “the mere fact of a defendant’s awareness that a gun would be used in the felony [is] insufficient to establish reckless indifference to human life.” (Ramirez, supra, 32 Cal.App.5th at pp. 401-402; see also Clark, supra, 63 Cal.4th at p. 617 [“while the fact that a robbery involves a gun is a factor beyond the bare statutory requirements for first degree robbery felony murder, this mere fact, on its own and with nothing more presented, is not sufficient to support a finding of reckless indifference to human life for the felony-murder aider and abettor special circumstance”].) We therefore conclude the first Clark factor is neutral.

2. Defendant’s Presence at the Crime Scene

The second Clark factor assesses defendant’s presence or proximity to the offense. (Clark, supra, 63 Cal.4th at p. 619.) No evidence places defendant in the apartment on the night of the shooting. Nevertheless, the People argue the record supports an inference that he was physically present at the time of the shooting. We disagree.

Erin, who knew defendant, testified that he did not see his former neighbor on the night of the shooting. The record reveals that Erin and Derek were corralled in the bathroom for several minutes, and defendant was seen walking in the direction of their apartment around the same time. (Owens, supra, C069838.) But nothing in the record suggests defendant ever reached the apartment, let alone that he arrived in time to prevent the shooting. (See Ramirez, supra, 32 Cal.App.5th at p. 405 [evidence that the defendant was “in close proximity to the shooting” does not show “he was close enough to exercise a restraining effect on the crime or his colleagues”].) That defendant may have been near the apartment at the time of the shooting does not support an inference that he was physically present in the apartment. And even assuming there was substantial evidence to support an inference that defendant was close enough to see or hear what was going on, nothing suggests he was in a position to warn Heredia-Arriaga against entering the apartment or prevent Murray from shooting. The second Clark factor weighs in defendant’s favor. (Clark, supra, 63 Cal.4th at p. 619 [insufficient evidence of reckless indifference to human life where the defendant who planned the robbery was waiting across the parking lot at the time of the shooting and did not “have an opportunity to observe [the shooter’s] response to [the victim’s] unanticipated appearance or to intervene to prevent [the victim’s] killing”]; Scoggins, supra, 9 Cal.5th at p. 678 [insufficient evidence of reckless indifference where the defendant “was not physically present at the crime scene and was not in a position to restrain” the shooter, and it was not clear that he could see the confrontation].)

3. Duration of the Crime

The third Clark factor looks to the duration of the crime. (Clark, supra, 63 Cal.4th at p. 620 [“Where a victim is held at gunpoint . . . or otherwise restrained in the presence of perpetrators for prolonged periods, ‘there is a greater window of opportunity for violence’ [citation], possibly culminating in murder”].) The record before us does not disclose the duration of the robbery. However, the record suggests that events unfolded rapidly, within a span of minutes rather than hours. (See Scoggins, supra, 9 Cal.5th at p. 681 [interaction with victims that lasted no more than five minutes, rather than a prolonged period, did not weigh in favor of reckless indifference finding].) Furthermore, the record establishes that the shooting occurred when Reed and Murray were surprised by Heredia-Arriaga’s unexpected arrival. (Owens, supra, C069838.) This factor, too, weighs in defendant’s favor. (See Clark, supra, at p. 539 [no reckless indifference when shooter surprised by unexpected arrival of store employee’s mother]; see also In re Taylor (2019) 34 Cal.App.5th 543, 558 (Taylor) [no reckless indifference where shooting appeared to be “ ‘a somewhat impulsive’ response to the victim’s unexpected resistance”].)

4. Defendant’s Knowledge of a Cohort’s Likelihood of Killing

The fourth Clark factor addresses defendant’s knowledge of his cohort’s propensity for violence. (Clark, supra, 63 Cal.4th at p. 621.) There is no evidence that defendant knew Reed or Murray were likely to shoot anyone. Nothing in the record shows that either of them “had ever participated in shootings, murder, or attempted murder.” (Banks, supra, 61 Cal.4th at pp. 810-811.) Nor does anything suggest either was “likely to use lethal force.” (Scoggins, supra, 9 Cal.5th at p. 681.)

The People suggest that defendant knew Murray had a propensity for violence because he was mentally and physically impaired and intoxicated or “stoned.” But that does not, without more, establish that Murray had a propensity for violence or was likely to use lethal force. (See In re Miller (2017) 14 Cal.App.5th 960, 976 [neither a shared criminal history nor “evidence that [the killer] regularly used PCP, including on the day he killed [the victim],” supported an inference that the defendant knew his cohort was “likely to kill”].)

The People also suggest that defendant knew Reed had a propensity for violence. They point to statements made by Reed’s sister to police that her brother had “been in the streets his whole life” and did “dirty shit all the time.” These statements do not support an inference that Reed had a propensity for violence, let alone one known to defendant. Indeed, Reed’s sister also told police, “I’ve never known my brother to kill a person.” This factor also weighs in defendant’s favor. (Cf. Ramirez, supra, 32 Cal.App.5th at p. 405 [a general history of criminality, “even if known to [the defendant,] does not, contrary to the Attorney General’s claim, ‘fairly support an inference that [the defendant] would have expected his armed confederates to use deadly force’ ”].)

5. Defendant’s Efforts to Minimize the Risks of Violence During the Robbery

There is no evidence that defendant tried to minimize the risks of violence during the robbery. If anything, defendant could be said to have increased the risk of violence, by planning the home invasion robbery of a “known drug dealer,” as the People contend. But we do not believe these circumstances are enough, by themselves, to support a finding that defendant acted with reckless indifference to human life. People v. Bascomb (2020) 55 Cal.App.5th 1077 (Bascomb) and People v. McDowell (2020) 55 Cal.App.5th 999 (McDowell), which also involved home invasion robberies of drug dealers, confirm this conclusion.

In Bascomb, the defendant “cooked up a plan to break into the home of a known drug dealer while they were home and to use force, including firearms, to steal the dealer’s product.” (Bascomb, supra, 55 Cal.App.5th at p. 1089.) Unlike defendant here, the Bascomb defendant was physically present in the apartment at the time of the robbery, and personally used a gun to force some of the residents to the ground and keep them there for the duration of the robbery. (Id. at pp. 1083, 1089.) In the meantime, the defendant’s accomplice shot and killed another resident—a marijuana dealer—in the next room. (Id. at p. 1081.) “That means,” the Bascomb court explained, “[the defendant] didn’t just watch without intervening as his accomplice accosted the murder victim in his bedroom, he used his weapon to keep the other victims at bay and thereby actively enabled the murder.” (Id. at p. 1089.) This conduct, the Bascomb court concluded “easily meets our state’s standard for what constitutes being a major participant who acted with reckless indifference to human life.” (Ibid.)

In McDowell, the defendant planned the home invasion robbery of Meehan, a methamphetamine dealer. (McDowell, supra, 55 Cal.App.5th at pp. 1005-1006.) There, too, the defendant participated in the robbery, and was armed with a lethal weapon (a “palm knife”). (Id. at p. 1005.) The defendant’s accomplice—Hutchison—was armed with a small revolver, which he pointed at Meehan and two other men. (Ibid.) The defendant looked at Meehan and said, “ ‘Where’s the shit?’ ” (Ibid.) When Meehan responded that he did not have anything, Hutchison fired a warning shot into the floor next to him. (Ibid.) Meehan said, “ ‘[K]ill me if you’re going to kill me.’ ” (Ibid.) One of Meehan’s associates then grabbed an object and struck the defendant with it. (Ibid.) Meehan tried to grab the gun from Hutchison. (Ibid.) Hutchison fired two shots, which struck and killed Meehan. (Ibid.) The defendant denied knowing Hutchison had a gun. (Ibid.)

The McDowell court found the defendant was instrumental in planning and perpetrating the burglary and attempted robbery and was thus a “major participant” within the meaning of Banks. (McDowell, supra, 55 Cal.App.5th at pp. 1011-1012, citing Banks, supra, 61 Cal.4th at pp. 795-796.) The court acknowledged, however, that the defendant presented “a closer question on ‘reckless indifference to human life.’ ” (McDowell, supra, at p. 1012.) The court accepted the defendant’s statement that he did not know Hutchison had a gun but noted that the defendant himself was armed with a knife, which he brandished during the robbery. (Id. at p. 1013.) And even assuming the defendant did not initially know that Hutchison had a gun, he knew by the time the warning shot was fired. (Ibid.) The McDowell court also observed that the defendant’s robbery plan “posed obvious risks of lethal violence” in that the defendant “was not only armed with a knife and (at some point) knew Hutchison was armed with and willing to fire a gun, but he also chose to plan and lead a crime with a particularly high risk of violence—a home invasion robbery of a drug dealer.” (Ibid.) The court explained that “it was foreseeable that customers or others could be present, even early in the morning, and that either the dealer himself or his customers might be armed or high and thus more likely to resist.” (Ibid.) On balance, the court concluded that, though “this case may be close to the line,” sufficient evidence supported the jury’s conclusion that the defendant acted with reckless indifference to human life. (Id. at p. 1015.)

Here, though defendant planned the home invasion robbery of an occasional drug dealer, the similarities to Bascomb and McDowell end there. Unlike the defendants in those cases, there was no evidence that defendant was armed, and no evidence supporting a nonspeculative inference that he knew or should have known that his confederates were. (Bascomb, supra, 55 Cal.App.5th at p.1089; McDowell, supra, 55 Cal.App.5th at p. 1013.) Unlike Bascomb and McDowell, there was no evidence that defendant was physically present in the apartment at the time of the shooting, and no substantial evidence from which the jury could reasonably infer that he was close enough to protect Heredia-Arriaga or restrain Murray. (Bascomb, supra, at p.1089; McDowell, supra, at p. 1013.) Nor does any evidence demonstrate that defendant harbored a willingness to kill—or to assist Reed and Murray in killing—to achieve the goal of robbing Erin and Derek, or that he anticipated the potential for loss of human life beyond that usually accompanying an armed robbery. On the record before us, we conclude defendant’s culpability more closely resembles that of the defendants in Clark or Scoggins, who were similarly unarmed and absent from the scene of the shooting. (See Clark, supra, 63 Cal.4th at pp. 611, 618-623; Scoggins, supra, 9 Cal.5th at pp. 677-679, 681, 683; see People v. Murillo (2020) 54 Cal.App.5th 160, 172, review granted on another ground, Nov. 18, 2020, S264978 [“In Banks and Clark, and in other cases in which a court has overturned a special circumstance finding, the defendant either was not present at the scene of the killing, or at least was not capable of preventing his cohort from acting”].)

Considering all the circumstances, “there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery.” (Clark, supra, 63 Cal.4th at p. 623; Miller, supra, 14 Cal.App.5th at pp. 976.) We therefore conclude the evidence was insufficient to support the special circumstance finding that resulted in a sentence of life in prison without the possibility of parole. We will therefore grant the petition.[5]

III. DISPOSITION

The petition for writ of habeas corpus is granted. The special circumstance found true under Penal Code section 190.2, subdivision (a)(17) with respect to count one is vacated. The matter is remanded with directions to resentence defendant consistent with the views expressed in this opinion.

/S/

RENNER, J.

We concur:

/S/

DUARTE, Acting P. J.

/S/

KRAUSE, J.

[1] Undesignated statutory references are to the Penal Code.

[2] We have previously granted defendant’s unopposed request for judicial notice of the record from defendant’s direct appeal. (Evid. Code, § 452, subd. (d).)

[3] This court remanded for the trial court to exercise its sentencing discretion with respect to Murray in light of the United States Supreme Court’s intervening decision in Miller v. Alabama (2012) 557 U.S. 460. (Owens, supra, C069838.)

[4] The People make much of defendant’s supposed belief that Erin was a “big-time drug dealer.” They suggest that a home invasion robbery of a “big-time drug dealer” would be more dangerous, and therefore, more likely to involve the use of guns. We acknowledge that the home invasion robbery of a “big-time drug dealer” might pose an elevated risk of violence, which could lead would-be robbers to arm themselves. But there was scant evidence that defendant believed Erin to be a “big-time drug dealer,” and no evidence that Erin’s drug dealing activities led defendant—who also appears to have been a drug dealer —to believe that Erin and Derek might be armed or likely to resist.

[5] Because we grant the petition on this basis, we do not consider defendant’s argument that his conviction was the result of false testimony.