Opinion
A147508
03-14-2017
In re PAULA R. MOYER, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR240919)
Petitioner Paula R. Moyer enlisted three accomplices to burglarize a home where she had occasionally worked as a housekeeper. Plans went awry when two of these accomplices entered the home and unexpectedly encountered the 78-year-old victim, whom they beat severely. The victim died some 10 months later following complications from the medical treatment he received for his injuries. Petitioner was tried before a jury, and was sentenced to life without the possibility of parole (LWOP) after being convicted of first degree murder with a felony-murder (burglary) special circumstance. (Pen. Code, §§ 187, 190.2, subds. (a)(17)(G).) We grant her petition for writ of habeas corpus, because the special circumstance cannot be upheld under the California Supreme Court's recent decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Further statutory references are to the Penal Code.
I. FACTUAL BACKGROUND
Because petitioner's culpability for first degree felony murder is not in dispute, we recite only those facts relevant to whether there was sufficient evidence to support the true finding on the felony-murder (burglary) special circumstance. And, because petitioner's challenge to the special circumstance is to the sufficiency of the evidence, we state the facts in the light most favorable to the jury's verdict.
The victim, Farhan Jweinat, lived with his son Suleiman and his family in Vacaville. Suleiman owned a smoke shop in Woodland and met petitioner when she came in one day and asked him for a job. Petitioner did not go to work at the store, but was hired by Suleiman's wife Vera to clean their house five or six times. Farhan was present at the house each time petitioner came to clean. On one of these occasions, petitioner stole over $70,000 in cash that had been hidden under a bed inside the home. Vera asked petitioner to come clean the house again intending to confront her, but she changed her mind when petitioner arrived and did not broach the subject. Vera had initially reported the theft to the police, but did not pursue the matter.
The Jweinats maintained that the money had been won at a casino.
Karly Harrison and her boyfriend James Ray moved into the duplex where petitioner lived and they all got to know one another. Petitioner bragged to Harrison about stealing $74,000 from a house in Vacaville and using the money to buy cars for herself and her boyfriend and to cover the expense of moving into the duplex. Petitioner also said she had spent $5,000 on drugs and at the casino, and that she had been asked to clean the house again but was worried it was a setup.
On May 3, 2006, petitioner came to Harrison's unit and talked to Ray about burglarizing the Jweinats' house. Petitioner told him her boyfriend Paul Hinojosa was "in for it," and Ray asked her to have Hinojosa come over so they could talk. Petitioner left and returned later with Hinojosa. The three of them discussed the burglary, including the possibility of using another car. Harrison saw them drawing a map during the discussion.
The following day, May 4, 2006, Ray and Hinojosa left the duplex for a few hours to look for a car to use for the burglary. When they returned in the afternoon, petitioner told them it was too late to do it that day because the children would be home from school. Hinojosa said he could not do the burglary the following day because he could not miss another session of a program he was required to attend. That night, petitioner and Hinojosa came to Harrison's unit again and suggested that Hinojosa's half-brother, Christopher Morgan, could help them commit the burglary. Harrison warned Ray not to get involved, but Ray told her he wanted to see if the residents of the house had as much cash as they had when petitioner stole from them the first time.
The next morning, on May 5, 2006, petitioner came to Harrison's unit and gave Harrison a line of methamphetamine. Petitioner also brought over some beanies, walkie-talkies, ski masks and gloves. Sometime between 10 a.m. and noon, Harrison and Ray drove to Vacaville in Ray's car, a teal blue Corsica, and met petitioner and Morgan at a McDonald's restaurant near the Jweinats' house. Petitioner and Morgan were driving a black Acura owned by Hinojosa.
After having lunch at the McDonald's, petitioner told Harrison to get into the Acura with her, while Ray and Morgan got into the Corsica. Petitioner led the way to the Jweinats' house, speaking to Ray and Morgan with the walkie-talkies. She parked on the street and got out of the car to confer with Ray and Morgan, who had also stopped. Ray moved the Corsica into the Jweinats' driveway and walked toward the house with Morgan while petitioner and Harrison parked the Acura on the street uphill from the house and waited. Petitioner received a call on her cell phone and Harrison heard her tell the caller to use the back door because it was always open.
While they were waiting in the car, petitioner reassured Harrison that everything would be fine and Harrison got out to smoke a cigarette. About 10 minutes after they had parked, Harrison heard the car start up and petitioner told her to "hurry up, come here, come here." Petitioner told Harrison she "wanted to go in" and told Harrison to drop her off so she could get Ray and Morgan out of the house. Harrison dropped petitioner off in front of the house then returned the car to the spot up the hill where they had previously parked.
About 10 to 15 minutes after Harrison had re-parked the Acura, she saw petitioner, Ray and Morgan come out of the house and get into Ray's Corsica. Harrison met them back at the McDonald's, where she noticed that Morgan had blood on his clothes. Petitioner and Morgan drove away in the Acura, while Harrison rode home in the Corsica driven by Ray. Ray told her that everything had "got all fucked up," and "the less you know the better." He opened the glove compartment and showed her a gun in a holster he said he had obtained during the burglary.
Suleiman and Vera denied having a gun in their home, though bullets were found in Farhan's bedroom during the ensuing police investigation.
After petitioner and her cohorts left the scene, the Jweinats' neighbors discovered Farhan standing in front of the home, covered in blood with his hands tied behind his back. He said in broken English, "[T]hey won't stop hitting me, they won't stop hurting me, they just keep hitting me over and over." Farhan told the neighbors they had wanted money and he gave them $700. He was taken to the hospital for treatment, where he told a detective that his attackers were two "American" men in their 30s.
Vera rushed home after she learned what had happened. She walked through the house with the detective and saw that every room had been ransacked. There was blood on the floor in the kitchen, family room, Farhan's bedroom and an adjacent bathroom. Farhan's bedroom, which was usually spotless, was in disarray, and his dentures were found in a large pool of blood in the kitchen. Vera found a bottle of mace or pepper spray on her bedroom dresser, and the detective smelled pepper spray and noticed a liquid that appeared to be pepper spray on the kitchen floor. According to Vera, no one in the house owned mace. Vera discovered that gold jewelry worth between $50,000 and $70,000 was missing, as was a computer, a Gameboy, her son's tennis shoes and various other belongings.
After learning that Vera had previously contacted the police to report petitioner's suspected theft of cash from the home, the detective decided to contact petitioner at the duplex where she lived. The police also contacted Harrison and Ray next door. Property taken from the Jweinat home was found in both units and in Hinojosa's black Acura, which was parked in the driveway when police contacted petitioner.
Mariah Alsop was the significant other of petitioner's mother, and went to petitioner's home to remove her belongings after her arrest. While Alsop was standing outside smoking a cigarette, a man she did not then know, but whom she later identified as Morgan, came up to her and started talking. He said he was scared "because they're looking for me," and told Alsop that he and Ray had gone into a house and found an old man there. According to Morgan, they bound the man and put him in the bathroom, telling him if he kept his mouth shut nothing would happen. Morgan said he then went upstairs to look for things to steal and heard Ray yelling, "You better get the f—down here, I just hit this old man." Morgan went downstairs and saw Ray viciously beating the man, who had blood running down his head. He admitted joining Ray in the beating before they left. Alsop asked Morgan where petitioner had been while this was happening and Morgan said she and Harrison were somewhere down the road in a car until petitioner came to the house and pounded on the door telling them to get out of the house.
At the preliminary hearing in the case, Alsop testified that Morgan had said he had a gun and forced the victim into the bathroom with the gun.
Meanwhile, Farhan remained in the hospital for treatment of the injuries inflicted during the attack, which included a broken jaw, broken ribs and a severe head injury. On May 17, 2006, he suffered a cardiac arrest and stopped breathing after receiving surgery for his broken jaw. He was resuscitated, but remained in a persistent vegetative state and ultimately died on March 19, 2007, about 10 months after the attack. According to Dr. Arnold Josselson, who performed the autopsy, the cause of death was "anoxic encephalopathy (loss of oxygen to the brain) due to blunt force injuries." Although it was not possible to determine the cause of the cardiac arrest, Dr. Josselson believed it was triggered by stress or a mucous plug in Farhan's tracheostomy tube.
II. PROCEDURAL HISTORY
Petitioner, Ray and Morgan were charged by information with first degree murder with felony-murder special circumstances (robbery and burglary). (§§ 187, 189, 190.2, subd. (a)(17).) They were jointly tried before a jury, with Karly Harrison testifying as a witness for the prosecution.
Jury instructions were given on first degree murder under a felony-murder theory and the natural and probable consequences doctrine. (See People v. Chiu (2014) 59 Cal.4th 155, 166 (Chiu) [natural and probable consequences doctrine operates independently of felony-murder rule].) The trial court also gave a version of CALCRIM No. 703 on the elements of the felony-murder special circumstance allegations, which provided in relevant part: "If you decide that a defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of Murder in the course of Robbery or Murder in the course of First Degree Burglary, you must also decide whether the defendant acted with intent to kill or with reckless indifference to human life. [¶] In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all the following: [¶] 1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant participated in the crime, he or she acted with reckless indifference to human life. [¶] A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death."
During deliberations, the jury asked for a definition of the term "act[ed] with reckless indifference to human life." With the agreement of all trial counsel, the court responded by referring the jurors to the definition of that term contained in CALCRIM No. 703.
The jury convicted petitioner of first degree murder. It found true the burglary-murder special circumstance allegation, but found not true the robbery-murder special circumstance allegation. The jury also convicted Ray and Morgan of first degree murder and found both the burglary-murder and robbery-murder special circumstance allegations to be true.
All three defendants filed a direct appeal in this court. Petitioner argued in her opening brief that (1) the trial court's instructions on causation were incomplete; (2) the evidence was insufficient to prove the injuries suffered by Farhan during the burglary were the cause of his death; (3) the trial court should have further defined the mental state required for the special circumstance allegation in response to the jury's question regarding the definition of reckless indifference; and (4) the prosecutor committed misconduct during closing argument. Petitioner did not separately challenge the sufficiency of the evidence to support the true finding on the special circumstance allegation, though in the context of arguing that the trial court's response to the juror's question was prejudicial, she stated, "It cannot be said that appellant showed 'reckless indifference' to human life when there is no evidence to show that she knew or expected that anyone would be home in the house when Ray and Morgan entered." We affirmed the judgment in its entirety in an unpublished opinion, People v. Ray (Sept. 8, 2011, A127613 & A127690) [nonpub. opinion.].
Almost four years later, the California Supreme Court issued its decision in Banks, supra, 61 Cal.4th 788, in which it considered the quantum of evidence necessary to show that a defendant who is not the actual killer has "acted with reckless indifference to human life while acting as a major participant in the underlying felony," so as to support a true finding on the felony-murder special circumstance under section 190.2, subdivisions (a)(17) and (d). (Id. at p. 794.) The court articulated a number of nonexclusive factors relevant to "whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered major." (Id. at p. 803.)
On October 15, 2015, within three months of the decision in Banks, petitioner filed a petition for writ of habeas corpus in this court, arguing that under the newly-articulated factors in Banks, the evidence was insufficient to support the felony-murder special circumstance in her case. We denied the petition without prejudice, based on her failure to demonstrate that she had exhausted her remedies by first seeking relief in the superior court. (See In re Steele (2004) 32 Cal.4th 682, 692; In re Hillery (1962) 202 Cal.App.2d 293, 294.) Petitioner filed a petition for a writ of habeas corpus in the superior court on November 25, 2015, which was denied in an order issued January 13, 2016. Citing In re Harris (1993) 5 Cal.4th 813 (Harris) and In re Seaton (2004) 34 Cal.4th 193, 199-200, the superior court concluded Banks did not constitute a change in the law, meaning petitioner's claim was procedurally barred by her failure to raise it on direct appeal. The superior court also rejected the claim on the merits.
Petitioner filed the instant petition for writ of habeas corpus on February 17, 2016, again asking this court to set aside the true finding on the felony-murder special circumstance based on Banks. We issued an order to show cause in this court why petitioner was not entitled to relief. During the pendency of the briefing, our Supreme Court issued its decision in Clark, supra, 63 Cal.4th 522, 609-623, in which it articulated a number of factors to be considered when determining whether a defendant who was not the actual killer and did not have an intent to kill had acted with the "reckless indifference to human life" necessary to support the felony-murder special circumstance. Both petitioner and the People have addressed the Clark decision in their pleadings. In her traverse, petitioner asserts, "Although the record on appeal in petitioner's direct appeal shows that she was a 'major participant' in the crime, the evidence does not prove that she acted with reckless indifference to human life.' "
III. DISCUSSION
Petitioner argues that under the authority of Banks and Clark, which should be applied retroactively to her case, the evidence was insufficient to show she acted with "reckless indifference to human life" as is necessary to support the felony-murder special circumstance when the defendant is not the actual killer and does not intend to kill. (Banks, supra, 61 Cal.4th at pp. 797-798; Clark, supra, 63 Cal.4th at p. 609; People v. Estrada (1995) 11 Cal.4th 568, 575 (Estrada).) The People respond that appellant did exhibit reckless indifference because she knew the victim would be home, having seen him during previous visits to clean the house, and she left the scene of the beating without calling for help. The People also argue petitioner is procedurally barred from raising this issue because Banks and Clark did not change the law and petitioner failed to challenge on direct appeal the sufficiency of the evidence supporting the special circumstance.
A. General Legal Principles: Application of Felony-Murder
Special Circumstance to Non-Killer
1. United States Supreme Court Jurisprudence—Death Penalty Cases
We provide an overview of the law leading to and including the decisions in Banks and Clark to give context to the substantive and procedural claims raised by the parties. This overview begins with two decisions issued by the United States Supreme Court that considered the extent to which a death sentence is cruel and unusual punishment when imposed upon a defendant who is not the actual killer and is convicted of murder under a felony-murder theory: Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison).
In Enmund, the defendant drove two armed confederates to a robbery victim's house and dropped them off, having previously learned the victim was in the habit of carrying large sums of cash. (Enmund, supra, 458 U.S. at p. 784.) When the robbery victim's wife appeared with a gun, the confederates shot and killed both the victim and his wife. (Ibid.) The defendant then drove his confederates away from the scene and helped them dispose of the guns, which were never found. (Id. at pp. 784-785.) He was convicted of robbery and murder under a felony-murder theory and sentenced to death, a result found unconstitutional by the Supreme Court: "Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed [the victims]. This was impermissible under the Eighth Amendment." (Id. at p. 798.)
In Tison, the defendants were brothers who planned and executed an armed breakout of their imprisoned father and his cellmate, holding guards and visitors at gunpoint. (Tison, supra, 481 U.S. at p. 139.) During their escape, they flagged down a passing car to replace their getaway car, captured the family inside at gunpoint, and drove them to the desert, where the escaped father and cellmate killed all four family members. (Id. at p. 140.) The Supreme Court upheld the defendants' death sentences even though they were not the actual killers and were convicted under the felony murder rule: "[M]ajor participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." (Id. at p. 158.) In support of its conclusion, the court observed "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." (Id. at pp. 157-158.)
2. Felony-Murder Special Circumstance under California Law
California's felony murder special circumstance renders a defendant eligible for the death penalty or LWOP and applies when the trier of fact finds "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit" specified felonies including robbery and burglary. (§ 190.2, subd. (a)(17)(A) & (G).) In 1987, the special circumstance was judicially construed to apply only to an actual killer or to an aider and abettor who intended to kill. (People v. Mil (2012) 53 Cal.4th 400, 408; see People v. Anderson (1987) 43 Cal.3d 1104, 1147.)
In 1990, the voters approved Proposition 115, which expanded the scope of section 190.2 by adding subdivisions (c) and (d): "(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true . . . . [¶] (d) "[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole . . . ." (Italics added.)
The "reckless indifference" and "major participant" elements of section 190.2, subdivision (d), derive verbatim from the United States Supreme Court's decision in Tison. (Estrada, supra, 11 Cal.4th at p. 575.) "Tison and a prior decision on which it is based, Enmund [], collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions. Section 190.2(d) must be accorded the same meaning." (Banks, supra, 61 Cal.4th at p. 794.) Though Tison and Enmund both concerned the death penalty and do not themselves stand for the proposition that a nonkiller may not be sentenced to LWOP absent proof of reckless indifference and major participation, section 190.2, subdivision (d), imports the Tison standard in its entirety and is applicable to all allegations of the felony-murder special circumstance, regardless of whether the death penalty is sought. (Banks, supra, 61 Cal.4th at p. 804; Estrada, supra, 11 Cal.4th at p. 575-576.)
Section 190.2, subdivision (d), "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, at p. 798.) Though the two requirements have been stated separately, they will often overlap. (Tison, supra, 481 U.S. at p. 158, fn. 12; Clark, supra, 63 Cal.4th at pp. 614-615; People v. Medina (2016) 245 Cal.App.4th 778, 788 (Medina).)
In Estrada, supra, 11 Cal.4th 568, our state Supreme Court considered the scope of the mens rea requirement in the context of a claimed instructional error: "Tison thus instructs that the culpable mental state of 'reckless indifference to life' is one in which the defendant 'knowingly engag[es] in criminal activities known to carry a grave risk of death' (481 U.S. at p. 157[]), and it is this meaning that we ascribe to the statutory phrase . . . in section 190.2(d)." (Estrada, at p. 577.) The court concluded the phrase "reckless indifference to life" was itself sufficient to convey "the notion that a defendant subjectively appreciated that his or her conduct created a grave risk of death," though on request it would be appropriate to instruct the jury more explicitly on this requirement with language from the Tison case. (Id. at p. 581.)
3. People v. Banks
In Banks, a decision filed four years after our opinion affirming petitioner's conviction and sentence on direct appeal, our Supreme Court considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty." (Banks, supra, 61 Cal.4th at p. 794.) The defendant (who was sentenced to LWOP) was the getaway driver for an armed robbery of a medical marijuana dispensary, who dropped his accomplices off and waited a few blocks away for about 45 minutes. (Id. at pp. 795-796.) During the burglary, one of the robbers shot and killed a security guard. (Id. at p. 795.) Defendant picked up some of the accomplices and drove them away from the scene. (Id. at p. 795.)
In considering whether the defendant was a "major participant" who acted with "reckless indifference to human life," the court noted that felony-murder participants may be placed on a continuum. (Banks, supra, 61 Cal.4th at pp. 800, 802, 811.) On one end, for example, is the getaway driver who was " 'not on the scene, who neither intended to kill nor was found to have had any culpable mental state,' " and who is not eligible for the death penalty or LWOP. (Banks, at p. 800.) At the other extreme is the actual killer or an aider and abettor who attempted or intended to kill, and who is eligible for such punishment. (Banks, at p. 800.) The court provided a list of nonexclusive factors to determine where on the continuum an accomplice to felony murder lies: "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.)
Applying those factors, the Banks court concluded there was insufficient evidence to sustain the special circumstance finding at issue. (Banks, supra, 61 Cal.4th at pp. 804-811.) As to whether the defendant was a "major participant" in the crime, no evidence was introduced about his role in planning the robbery or in procuring weapons, and although he and his two accomplices were gang members, no evidence was presented that any of them had previously committed a violent crime such as murder or attempted murder. (Id. at p. 805.) The defendant was not present at the scene of the shooting. (Ibid.) Like the defendant in Enmund, supra, 458 U.S. 782, he was "no more than a getaway driver" and was not a major participant under section 190.2, subdivision (d). (Id., at p. 805.)
The court in Banks also found the evidence insufficient to demonstrate the defendant had acted with reckless indifference to human life. (Banks, supra, 61 Cal.4th at pp. 807-811.) Although it could be inferred the defendant knew he was participating in an armed robbery, nothing in the evidence supported the conclusion beyond a reasonable doubt that he "knew his own actions would involve a grave risk of death." (Id., at p. 807.) His awareness that his confederates were armed and that armed robberies carry a risk of death was insufficient to establish the requisite reckless indifference to human life because " 'there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself.' " (Id. at p. 808, citing Enmund, supra, 458 U.S. at p. 799.) The court disapproved the court of appeal decisions in People v. Lopez (2011) 198 Cal.App.4th 1106 (Lopez) and People v. Hodgson (2003) 111 Cal.App.4th 566 (Hodgson), to the extent those decisions suggested that knowledge an accomplice is armed, in and of itself, can support a finding of reckless indifference. (Banks, supra, 61 Cal.4th at p. 809, fn. 8.)
The court in Banks rejected the argument of the People that participation in a robbery or burglary automatically demonstrates a reckless indifference to human life because those crimes appear on the list of felonies deemed inherently dangerous by the Legislature for purposes of the felony-murder rule itself. "Section 189 codifies the first degree felony-murder rule [citation]; participation in the crimes it lists [including robbery and burglary] subjects one to liability for first degree murder. To make participation in such crimes also sufficient, without more, to establish categorically reckless indifference to human life would collapse the Tison inquiry into the felony-murder inquiry and treat all felony murderers as equally culpable and eligible for death. But the central holding of Enmund, and Tison after it, was that for purposes of the death penalty, not all felony murderers are equally culpable and eligible for death. The People's position embraces the very punishment—death eligibility for participation in felony murder simpliciter—the Supreme Court has declared unconstitutional. [Citations.]" (Banks, supra, 61 Cal.4th at p. 810.)
Finally, turning to the People's arguments concerning the "case specific features of the armed robbery," the court in Banks concluded the defendant's gang membership was insufficient to establish reckless indifference in the absence of any evidence the defendant's accomplices and fellow gang members had previously committed violent crimes. (Banks, supra, 61 Cal.4th at pp. 810-811.) The court also rejected the claim that reckless indifference could be inferred because the accomplices carried "zip ties" to deal with a security guard. (Id. at p. 811.) The victim's coworkers believed him to be an unarmed guard and "there was no evidence [the defendant] believed otherwise, or even that he knew a guard would be present. Because nothing in the record reflects that [the defendant] knew there would be a likelihood of resistance and the need to meet that resistance with lethal force, the evidence failed to show [he] 'knowingly engag[ed] in criminal activities known to carry a grave risk of death." (Id. at p. 811.)
4. People v. Clark
Approximately one year after Banks, our Supreme Court decided Clark, supra, 63 Cal.4th 522, in which it again addressed the quantum of evidence required to support a felony-murder special circumstance when the defendant was convicted as an aider and abettor. The defendant in Clark (who had been sentenced to death) was more than just a mere getaway driver, having masterminded and organized the after-hours burglary and attempted robbery of a computer store, and having orchestrated the crime itself from a car in the store's parking lot. (Id., at pp. 536-537, 612-614.) An accomplice who actually entered the store and handcuffed three employees inside the men's restroom fatally shot the mother of one of the employees, who had arrived at the store to pick up her son from work. (Id. at p. 537, 613.)
The court in Clark noted it had "previously upheld a finding that a defendant was a major participant and showed reckless indifference to human life when the defendant, although not present at the murder, was 'the founder, ringleader, and mastermind behind' a criminal gang engaged in carjacking' " who had instructed his accomplices " 'that a resisting victim was to be shot.' " (Clark, supra, 63 Cal.4th at p. 614, citing People v. Williams (2015) 61 Cal4th 1244, 1281-1282.) However, it was unnecessary to decide whether the defendant in the case before it was a "major participant" under section 190.2, subdivision (d), because the evidence was insufficient in any event to show the defendant had acted with reckless indifference to human life. (Id. at p. 614.)
Because other special circumstances were found to be true in Clark, the reversal of the felony-murder special circumstance did not require the reversal of the defendant's sentence of death. (Clark, supra, 63 Cal.4th at pp. 623-624.)
In assessing the defendant's mens rea, the court in Clark restated and applied a version of the factors enumerated in Banks, including (1) a defendant's knowledge that weapons would be used; (2) his physical presence at the crime and his opportunity to restrain his accomplices or aid the victim; (3) the duration of the felony (a longer period of restraint often providing a greater window of opportunity for violence); and (4) the defendant's knowledge of his cohorts' likelihood of killing. (Clark, supra, 63 Cal.4th at pp. 618-621.) Additionally, as a matter of first impression, the court considered the defendant's efforts to minimize the risk of violence in the commission of the felony, concluding such evidence "can be relevant to the reckless indifference to human life analysis" though it would not "in itself, necessarily foreclose" such a finding. (Id. at pp. 621-622.)
Applying these factors to the case before it, the court in Clark found the evidence of reckless indifference to be insufficient to support the burglary- and robbery-murder special circumstances. It noted that the defendant did not carry a weapon and the sole weapon carried by an accomplice was a gun loaded with only one bullet. (Clark, supra, 63 Cal.4th at pp. 618-619.) There was no evidence the shooter had a propensity for violence, no evidence the defendant knew of any such propensity, and no evidence the defendant had an opportunity to observe the shooter's demeanor immediately before the shooting so as to ascertain he was likely to use lethal force. (Id. at p. 621.) The defendant was across the parking lot at the time of the shooting and there was no evidence he had instructed his accomplice to use lethal force; to the contrary, the victim was a woman who arrived unexpectedly on the scene and the defendant had no chance to intervene or prevent her killing. (Id., at pp. 619-620.) The robbery had been planned for after closing time, when most employees would be gone, and the defendant expected his accomplices to handcuff the remaining employees in a bathroom, thus minimizing the contact between the perpetrators and victims. (Id., at pp. 620-621.)
Finally, the court considered the effect of the defendant's efforts to minimize the risk to human life when planning the robbery: "Defendant's culpability for [the victim's] murder resides in his role as planner and organizer, or as the one who set the crime in motion, rather than in his actions on the ground in the immediate events leading up to her murder. But also relevant to his culpability as planner, there is evidence supporting that defendant planned the crime with an eye to minimizing the possibilities for violence. Such a factor does not, in itself, necessarily preclude a finding of reckless indifference to human life. But here 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. Given defendant's apparent efforts to minimize violence and the relative paucity of other evidence to support a finding of reckless indifference to human life, we conclude that insufficient evidence supports the robbery-murder and burglary-murder special circumstance findings. . . ." (Id. at p. 623.)
B. Application of Banks and Clark to Petitioner
We turn first to the substantive issue presented by this habeas corpus petition: Under Banks and Clark, was the evidence in this case legally sufficient to show petitioner acted with the reckless indifference to human life that is necessary to support the special circumstance finding under section 190.2, subdivision (d)? We conclude the answer is no.
Petitioner planned a daytime burglary of the Jweinats' house, having previously stolen a large sum of cash from that location. It is undisputed she was the instigator and ringleader of the operation, having broached the idea with her other accomplices and supplied them with equipment to be used during its execution. It is also undisputed that petitioner acted as a lookout during the burglary and actually entered the house at one point after her accomplices initiated the beating that ultimately led to the victim's death. Her involvement thus was greater than that of a mere getaway driver such as the defendants in Banks and Enmund. But while this evidence suggests petitioner may have been a major participant in the underlying burglary, it does not establish she acted with a "reckless indifference to human life," which requires a defendant to be " ' "subjectively aware that his or her participation in the felony involved a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 807, second italics added.)
Because petitioner acknowledges in her traverse that the evidence was sufficient to show she was a major participant in the underlying burglary, we do not further discuss that element.
We begin with a point made repeatedly in Banks and Clark, that the planning of or participation in a felony, even one in which the perpetrators will be armed, is not by itself sufficient to show reckless indifference. (Clark, supra, 63 Cal.4th at pp. 614-623; Banks, supra, 61 Cal.4th at pp. 807-810.) The evidence did not establish that petitioner provided Ray or Morgan with any type of weapon or believed either one of them was armed when they entered the Jweinats' home. Petitioner's planning of an unarmed burglary, as opposed to an armed robbery, makes the intended crime less dangerous than the offenses in Banks or Clark, in which the evidence was found insufficient to establish reckless indifference notwithstanding that the defendant was aware his accomplices would be carrying loaded guns. (Clark, supra, 63 Cal.4th at p. 613; Banks, supra, 61 Cal.4th at pp. 807-808.)
Mariah Alsop testified at the preliminary hearing that Morgan told her he had a gun and forced Farhan into the bathroom at gunpoint. Harrison testified at trial that after the burglary, Ray showed her a gun he had taken from the Jweinats' home. The detective investigating the crime testified at trial that no source other than Alsop suggested a gun was used, and in their return to the petition for writ of habeas corpus, the People characterize as "inapplicable" the Banks/Clark factor that asks whether the defendant knew an accomplice was armed. Assuming Alsop's prior testimony provided some evidence that either Ray or Morgan was armed with a gun when they entered the house, there is no evidence petitioner was aware of that fact.
The People argue petitioner acted with reckless indifference because she knew Farhan would be at home when Morgan and Ray went inside. We do not agree with this interpretation of the evidence. Vera Jweinat testified that Farhan had been home on the occasions petitioner came there to clean (as was Vera herself), but this does not mean petitioner knew Farhan would be home on the day of the burglary. To the contrary, there were several indications petitioner believed the home would be unoccupied when the burglary was committed: First, the burglary was originally set to go forward on the previous day, but petitioner called it off because she thought it was getting too late and the children would be home from school. This suggests she was trying to avoid committing the crime when family members were present. Second, Karly Harrison told police that petitioner told her the house was supposed to be empty and on the morning of the burglary, petitioner said she had driven by the smoke shop and "they're all there. The house should be clear." Third, Harrison and petitioner acted as lookouts to make sure no one came home while the burglary was in progress.
For these reasons, the evidence does not support an inference that petitioner knew Farhan would be home when Morgan and Ray entered the house. Indeed, we can infer from the jury's verdict that it concluded petitioner did not know the house would be occupied—otherwise it would have found true the robbery-murder special circumstance, on the theory that petitioner aided and abetted a robbery as well as a burglary because she anticipated that property would be taken from the presence of a person; i.e., by force or fear.
To the extent petitioner was aware that Farhan might be home by virtue of his residing there, this does not amount to reckless indifference for human life. No evidence was presented to show either Ray or Morgan had committed violent acts in the past, much less that petitioner was aware they possessed any propensity for violence. And, as already noted, nothing in the record suggests she believed they were carrying any weapons.
A comparison to the facts of Clark and Banks shows petitioner had even less reason than the defendants in those cases to believe her accomplices on the scene would encounter resistance prompting a resort to lethal force. In Clark, supra, 63 Cal.4th at pages 620-621, the evidence of reckless indifference was deemed insufficient to support the robbery-murder special circumstance even though the defendant knew an accomplice armed with a gun would be coming in contact with some of the employees of the store he had targeted and would attempt to restrain them by handcuffing them inside the store bathroom. In Banks, supra, 61 Cal.4th at page 795, the defendant knew his accomplices would be committing an armed robbery of a marijuana dispensary during business hours, virtually ensuring an encounter with employees, customers and a guard. Still, the court found the evidence of reckless indifference to be insufficient in those cases, concluding the mere possibility of lethal force could not suffice: "In Tison as well, the Arizona Supreme Court had employed the same logic as the Court of Appeal here, reasoning that the constitutional culpability requirement was satisfied by the fact a participant in an armed robbery could anticipate lethal force might be used. The United States Supreme Court was unpersuaded, observing Earl Enmund himself might well have anticipated the use of lethal force as a possibility, for 'the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves.' [Citation.] This understanding of the requisite culpability 'amounts to little more than a restatement of the felony-murder rule itself'. . . . Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Banks, at p. 808, italics added.) While all residential burglaries carry some risk of harm, the record in this case does not support the inference petitioner was subjectively aware of a grave risk of death when Ray and Morgan entered the home.
A can of pepper spray or mace was found in the master bedroom and pepper spray or mace residue was found on the kitchen floor. In light of Vera Jweinat's testimony that no one who lived in the house owned mace, this evidence supported an inference that either Morgan or Ray was carrying the can when they entered the home. But assuming mace may be deemed a dangerous weapon (see People v. Blake (2004) 117 Cal.App.4th 543, 556-559), there was no evidence its use would create a "grave risk of death." In any event, no evidence was presented suggesting petitioner supplied pepper spray or mace to her accomplices or knew they were taking it into the home, if in fact they did.
The People argue that petitioner's culpability is heightened beyond that of the defendants in Banks and Clark because she entered the house while the burglary was ongoing to "get them out" and remained inside for 10 to 15 minutes before they all left the house and rendezvoused with Harrison at the McDonald's restaurant. From this, it can be inferred petitioner knew Farhan had been beaten before they made their escape from the scene. But there is no evidence petitioner participated in the attack itself, and indeed, the jury found the robbery-murder special circumstance untrue as to the petitioner, showing it did not believe she was involved in or facilitated the attack. It cannot be inferred from the record that petitioner saw Farhan before the beating occurred, participated in the beating, or was in a position to avert the injuries inflicted by Morgan and Ray.
Taking a slightly different tack, the People argue that even if petitioner could not have prevented the beating, she could have called for medical assistance for Farhan rather than leaving him bound and injured inside the home. From a moral standpoint, this is no doubt true. But the question we must answer, as framed by Banks and Clark, is whether petitioner knowingly created a grave risk of death by virtue of her own conduct, which included leaving the scene. Farhan was obviously injured at this point, but he was able to walk into the front yard shortly after the attack. His death was precipitated by a cardiac arrest following a surgery to treat his injuries several days later, and no medical evidence was presented to show a delay in treatment contributed to his death. While the cause of Farhan's death was sufficiently proximate to support the defendants' liability for felony murder, petitioner's awareness of his injuries after they were inflicted does not establish she acted with reckless indifference to human life as that phrase has been interpreted by the federal and state supreme courts.
We are unpersuaded by the People's citation to People v. Smith (2005) 135 Cal.App.4th 914, 927, upholding a robbery-murder special circumstance when the defendant planned a robbery with two accomplices; stood lookout outside the victim's motel room while one accomplice went inside; remained there while the accomplice stabbed the victim 27 times, beat her in the face with a steam iron, and slammed her head through the wall; and fled with his blood-covered accomplice when the accomplice left the motel room. (Id. at pp. 919-920, 927.) The evidence in Smith was found to support a finding of reckless indifference to human life because the defendant heard the victim being assaulted for a relatively lengthy period and did not intervene, choosing instead to stand guard during the beating and then flee with the assailant rather than coming to the victim's aid or summoning help. (Id. at pp. 927-928.) Here, petitioner did not plan a residential robbery in which force against the victim was contemplated in advance, nor was any evidence presented that she stood by doing nothing while Farhan was being beaten.
Post-Banks cases finding sufficient evidence of reckless indifference are also distinguishable on their facts, even though they mention as part of their analysis that the defendant left a fatally injured victim at the scene.
In People v. Price (2017) 8 Cal.App.5th 409 [2017 WL 527921, pp. **26-27], a reasonable trier of fact could have concluded the defendant was the actual killer and acted with an intent to kill. Resort to the "reckless indifference" standard was therefore unnecessary.
In Medina, supra, 245 Cal.App.4th at pages 782-784, the killer was a drug dealer who shot a supplier who had "shorted" him. One of the appealing defendants (Medina) had alerted the killer to the shortage of drugs, accompanied him to the scene, participated in an attempted armed robbery, and "made no attempt to intervene or avert the violence that followed." (Id. at p. 791.) Medina had previously assisted the killer in another shooting and knew he was willing to resort to deadly violence. (Id. at p. 792.) The other appealing defendant (Whitehead) was not involved in planning the attempted robbery of the drug supplier, but asked to go along when he learned of the plan and "participated fully as armed backup." (Ibid.)
In People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1385-1386, review granted July 13, 2016, S234377, one appealing defendant proposed robbing the victim, lured victim to the scene, and informed her accomplices the victim was drug dealer who had been violent with her in the past, thus creating a "substantial probability the robbery would result in resistance and the need to meet that resistance with deadly force." The other appealing defendant was present at scene of the robbery and was in a position to facilitate or prevent the actual murder. (Ibid.)
In all of these cases, the finding of reckless indifference is predicated on more than the defendant leaving the scene rather than seeking help. In the case before us, such additional facts are lacking and the evidence is insufficient to support the special circumstance finding under section 190.2, subdivisions (a)(17)(G) and (d).
C. Propriety of Habeas Corpus as Remedy
The People argue that regardless of its substantive merits, the petition for writ of habeas corpus must be denied for procedural reasons: (1) it was not raised in petitioner's direct appeal; and (2) a challenge to sufficiency of the evidence is not cognizable in a habeas corpus proceeding. We disagree.
1. Waltreus/Dixon Rule and Exceptions
Generally speaking, a claim that is raised and rejected on direct appeal, or which is not raised on direct appeal, may not be raised in a subsequent petition for writ of habeas corpus. (In re Waltreus (1965) 62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756, 759.) There are four recognized exceptions to the so-called Waltreus/Dixon rule: (1) where the issue involves a fundamental constitutional error; (2) where the judgment of conviction was rendered by a court lacking fundamental jurisdiction; (3) where the court acted in excess of its jurisdiction; and (4) where there has been a change in the law affecting the petitioner. (In re Reno (2012) 55 Cal.4th 428, 478, 490-491 (Reno); Harris, supra, 5 Cal.4th p. 825.) The third and fourth exceptions allow petitioner's claim in this case.
a. Excess of Jurisdiction
" 'Habeas corpus is available in cases where the court has acted in excess of its jurisdiction. [Citations.] For purposes of [the writ of habeas corpus], the term "jurisdiction" is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court's powers as defined by constitutional provision, statute, or rules developed by courts.' [Citation.] This view is consistent with the statutory scheme governing habeas corpus, which provides that a prisoner may be discharged from custody 'When the jurisdiction of [the committing] court . . . has been exceeded.' (§ 1487, subd. 1, italics added.)" (Harris, supra, 5 Cal.4th at pp. 838-839.)
A trial court acts in excess of its jurisdiction when, among other things, " 'what the defendant did was never proscribed' " under the pertinent statute. (People v. Mutch (1971) 4 Cal.3d 389, 396 (Mutch).) Under this exception, " 'a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to [her] conviction and if it appears that the statute under which [she] was convicted did not prohibit [her] conduct.' " (Ibid., quoting In re Zerbe (1964) 60 Cal.2d 666, 667-668; see In re Earley (1975) 14 Cal.3d 122, 125.) "It is only where it appears as a matter of law that the defendant's conduct did not violate the statute under which [she] was convicted that the defendant is entitled to collateral relief." (Earley, at p. 125.) Although the state's interest in the finality of its judgments is strong, "where such review does not require a redetermination of the facts, and thus poses a strictly legal issue, the state's interest is reduced. In such circumstances, an individual's interest in obtaining judicial review of an allegedly illegal sentence cannot be ignored." (Harris, at p. 841.)
In Mutch, supra, 4 Cal.4th 389 and Earley, supra, 14 Cal.3d 122, the court reviewed on habeas corpus claims that defendants convicted of kidnapping for the purpose of robbery had not satisfied the asportation element of that offense. The defendants' convictions had been affirmed on direct appeal, but an intervening Supreme Court decision had held the asportation element of kidnapping for robbery could not be satisfied by movements that were merely incidental to the robbery and did not substantially increase the risk of harm over that necessarily present in the crime of robbery itself. (Ibid.; see In re Brigham (2016) 3 Cal.App.5th 318, 331 (Brigham).)
People v. Daniels (1969) 71 Cal.2d 1119.
In this case, similar to Mutch and Early, an intervening Supreme Court decision "confirmed a substantive definition" of a criminal provision. (Mutch, supra, 4 Cal.3d at p. 395.) Here, as in Mutch and Earley, the question was whether the evidence supported a necessary element of the provision as a matter of law. (Brigham, supra, 3 Cal.App.5th at p. 332.) Habeas corpus relief is accordingly appropriate to "rectify the error of the court's act in 'excess of its jurisdiction.' " (Ibid.)
b. Change in the Law
We also conclude the "change in the law" exception to the Waltreus/Dixon rule applies to petitioner's challenge to the special circumstance. Although the decisions in Banks and Clark did not change the necessary elements of a substantive criminal provision, narrow a legal theory of culpability, or overrule prior case law (compare People v. Chun (2009) 45 Cal.4th 1172, 1199; Chiu, supra, 59 Cal.4th at pp. 158-159), we do not think this exception is limited to such situations. Two decisions illustrate the point.
The question of whether there has been a change in the law for purposes of allowing habeas corpus review notwithstanding the Waltreus/Dixon rule is distinct from the question of whether a subsequent court decision establishes a new rule of law that should be applied retroactively to a decision already final. (See, e.g. In re Lopez (2016) 246 Cal.App.4th 350, 356-359 [discussing considerations and tests to determine whether judicial decision should be given retroactive effect].) The People do not argue that Banks and Clark should not be applied retroactively to cases already final; rather, they limit their procedural challenge to the claim that the Waltreus/Dixon bar applies to this petition because the claim was not raised on direct appeal. --------
In In re Coley (2012) 55 Cal.4th 524, 536-537, the Supreme Court invoked the change of law exception to the Waltreus/Dixon rule to review the defendant's claim on habeas corpus that a 25-year-to-life sentence for failing to register as a sex offender amounted to cruel and unusual punishment. Although the constitutional challenge had been raised and rejected in a prior appeal, an appellate court decision finding such a sentence to be cruel and unusual punishment had been filed several years later, meaning the claim was not procedurally barred. (Id. at p. 537.) Notably, the intervening appellate decision, People v. Carmony (2005) 127 Cal.App.4th 1066, did not change the interpretation of either the state or the federal cruel and unusual punishment clause; rather, it applied the evolving law in that area to a particular conviction under the sex offender registration statute and concluded that when the violation is merely technical and the defendant has otherwise acted in good faith and kept the authorities advised of his whereabouts, a three strikes sentence is cruel and unusual. (Id. at p. 1079-1084.)
In In re Saldana (1997) 57 Cal.App.4th 620, 624, the defendant was sentenced to 25 years to life under the three strikes law by a trial court that believed it did not have the discretion to strike a prior conviction for sentencing purposes, but it indicated it would strike the prior if it had the power to do so. The defendant challenged his sentence on direct appeal and the court of appeal affirmed, concluding it would have been an abuse of discretion to strike the prior convictions in light of the defendant's criminal history. (Ibid.) The California Supreme Court subsequently issued its decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, holding that trial courts did indeed have the discretion to strike prior convictions under the three strikes law. The defendant sought relief in the trial court via habeas corpus and was resentenced to four years in prison. (Ibid.) On appeal from that order, the People argued that the habeas petition had been barred by the "second appeal" rule of Waltreus and Dixon, and the court disagreed, citing the "change in the law" exception. (Id. at pp. 627-628.) However, Romero did not "change" the rule regarding whether a trial court had the discretion to strike a strike on its own motion; rather, as with Banks and Clark, it recognized what the law had been since its enactment.
The decisions in Banks and Clark did not alter the definition of "reckless indifference" under section 190.2, subdivision (d), but they applied that definition in a way that fundamentally alters the tenor of the analysis when considering whether the evidence presented supports the felony-murder special circumstance. Prior to Banks, appellate courts in California had assumed that the knowledge an accomplice would be carrying a weapon would suffice to show reckless indifference. (Lopez, supra, 198 Cal.App.4th at p. 1116, and Hodgson, supra, 111 Cal.App.4th at p. 580, overruled in part by Banks, supra, 61 Cal.4th at p. 809, fn. 9.) Banks held otherwise. (Banks, at p. 809 & fn. 8.) And in Clark, the Supreme Court took Banks one step further by holding that even a defendant who acted as a major participant in an underlying armed felony by planning the crime does not necessarily possess the subjective state necessary for the felony-murder special circumstance to apply. (Clark, supra, 63 Cal.4th at pp. 619, 623.) The court in Clark also held, as a matter of first impression, that the culpability of a defendant who plans a crime may be mitigated by efforts to minimize the risk of violence. (Id., pp. 622-623.)
The People argue that because there was no evidence petitioner knew Morgan or Ray were armed, the Banks court's partial overruling of Lopez and Hodgson did not change the law regarding section 190.2, subdivision (d), in any way relevant to her case. We do not agree. A corollary to that aspect of the holding in Banks—that knowledge of a weapon is not enough to prove reckless indifference—is that the absence of such knowledge indicates a lack of reckless indifference. Post-Banks, petitioner's lack of knowledge that Morgan or Ray were armed is a circumstance that weighs heavily against a finding she had the mens rea necessary to support the special circumstance. Additionally, Clark's conclusion that efforts to minimize the risk of violence may be considered as a circumstance tending to show the lack of reckless indifference is directly relevant to petitioner's case, because the evidence showed she planned a daytime burglary by unarmed accomplices.
For these reasons, we conclude the decisions in Banks and Clark changed the relevant law for purposes of the Waltreus/Dixon rule.
2. Cognizability of Claim that Evidence was Insufficient
The People argue the petition is barred for the additional reason that claims of insufficiency of the evidence to support a conviction are not cognizable in a habeas corpus proceeding. We are not persuaded.
The rule cited by the People derives from In re Lindley (1947) 29 Cal.2d 709, 723 (Lindley), in which the defendant filed a petition for writ of habeas corpus following an affirmance on direct appeal, arguing "he was convicted by the testimony of witnesses known by the prosecution to be incompetent, that new and material evidence has been discovered that was not presented at [his] trial, that certain testimony was false, that [he] was insane when the crime was committed and at the time of trial, and [is] now mentally incompetent." (Lindley, supra, Cal.2d at p. 722) The court observed: "[E]vidence which is uncertain, questionable or directly in conflict with other testimony does not afford a ground for relief upon habeas corpus, and the proceeding may not be used as a device for the correction of mere errors or irregularities committed within the exercise of an admitted jurisdiction. [Citations.] Upon habeas corpus, ordinarily it is not competent to retry issues of fact or the merits of a defense, such as insanity, and the sufficiency of the evidence to warrant the conviction of the petitioner is not a proper issue for consideration. [Citations.]" (Lindley, at pp. 722-723, italics added.)
Lindley did not involve a sufficiency of the evidence claim in a case where the law had changed in favor of the defendant following an affirmance on direct appeal. Nor was the habeas petition in Lindley based on a subsequent decision that "confirmed a substantive definition" of a criminal provision affecting the defendant, such that the conviction was in excess of the court's jurisdiction. (Mutch, supra, 4 Cal.3d at p. 395.) While it is true that habeas corpus will not ordinarily serve as a substitute or second appeal, Supreme Court decisions subsequent to Lindley have, as discussed above, applied the "excess of jurisdiction" exception to the Waltreus/Dixon rule to sufficiency of the evidence claims on habeas corpus when a subsequent decision clarifies that the defendant was convicted under a statute that did not punish his or her conduct. (Earley, supra, 14 Cal.3d at p. 125; Mutch, supra, 4 Cal.3d at pp. 395-396.)
We thus do not view Lindley as an absolute bar to habeas corpus claims involving the sufficiency of the evidence when an exception to the Waltreus/Dixon rule applies. This is consistent with the Supreme Court's decision in Reno, supra, 55 Cal.4th at pages 505-506, which concluded the defendant's post-appeal challenges to the sufficiency of the evidence were not cognizable on habeas corpus where there "were no allegations [] justifying their presentation" or "plausibly justifying how the claims fall outside the Lindley rule." Here, the refinement of the law following Banks and Clark justifies the presentation of petitioner's claims notwithstanding Lindley.
IV. CONCLUSION
For the foregoing reasons, the burglary-murder special circumstance found true under section 190.2, subdivisions (a)(17)(G) and (d), cannot stand. Our decision today is in no way intended to understate the seriousness or reprehensibility of petitioner's conduct, which set in motion the series of events leading to the tragic and painful death of an innocent victim. But the legal question for us to decide today is whether her conduct was sufficiently culpable to warrant a true finding on a special circumstance allegation that would permit imposition of the death penalty, even though the death penalty was not sought in this case. (See Banks, supra, 61 Cal.4th at pp. 794, 804.) Under the principles recently set forth in Banks and Clark, the special circumstance allegation cannot stand.
V. DISPOSITION
The true finding on the burglary-murder special circumstance under section 190.2, subdivision (a)(17)(G), is vacated and petitioner's sentence is modified to 25 years to life for her conviction of first degree murder without special circumstances. (§ 190, subd. (a).) The superior court is directed to amend the abstract of judgment to reflect the modification and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.