Anthony Taylor filed a habeas petition claiming that his special circumstance finding in a felony murder conviction should be vacated due to insufficient evidence based on recent caselaw. His petition, filed 20 years after finality of direct review, was considered timely because it was brought within a year of that recent caselaw that provided him with a legal claim.
Taylor’s conviction as an idea and abettor
Anthony Taylor participated in an attempted robbery at a Livermore liquor store during which one of his accomplices shot to death a store employee. In 1994, Taylor was convicted of first degree felony murder and the jury found that the killing occurred in the commission of an attempted robbery that he aided and abetted “as a major participant” and “with reckless indifference to human life,” a special circumstance requiring a sentence of life in prison without the possibility of parole under Penal Code section 190.2, subdivision (d) (section 190.2(d) ). The special circumstance finding was previously upheld on appeal, the Court fining that Taylor was both a major participant and had made statements after the murder that showed a reckless and callous indifference for human life.
Banks case clarifies aiding and abetting as a major participant and with reckless indifference
In 2018, Taylor filed a petition for a writ of habeas corpus seeking to have the special circumstance vacated under People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). These cases clarified what it means for an aid and abettor to be a ‘major participant’ who acted with a ‘reckless indifference to human life.’ A defendant acts with a reckless indifference to human life when he or she “knowingly creat[es] a ‘grave risk of death.’ ” (Banks, at p. 808.)
Taylor was not a major participant
Here, Taylor did not supply the accomplice who shot the victim with the murder weapon, and it was unclear if he knew his accomplice was armed. There was no evidence that Taylor talked beforehand about the use of a gun and Taylor did not have or use his own weapon during the crime. Taylor was not aware that the planned robbery posed a heightened risk of death. The Court found that Taylor did not act with reckless indifference to human life.
Taylor did not act with reckless indifference to human life
Banks and Clark require evidence of a more than a general indifference to human life. Evidence of a reckless indifference is required which is shown when the defendant knowingly creates a serious risk of death. (Banks, supra, 61 Cal.4th at pp. 808-809) Taylor’s callousness toward the death of the victim is not enough. There must be be evidence that the defendant’s participation in planning or carrying out the crime contributed to a heightened risk to human life.
SB 1437 and Habeas Relief
Senate Bill No. 1437 amended section 189 to provide that a defendant, like Taylor, who was not the actual killer or did not have an intent to kill is not liable for felony murder unless he or she “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3); Stats. 2018, ch. 1015, § 3.)
The Court agreed that the standard under section 189, subdivision (e)(3) for holding such a defendant liable for felony murder is the same as the standard for finding a special circumstance under section 190.2(d).
Senate Bill No. 1437 applies to defendants, like Taylor, whose convictions are final. It added section 1170.95, which allows those “convicted of felony murder … [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts.”
Conditions for relief under SB 1437
(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder ….
(2) The petitioner was convicted of first degree murder or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted of first degree or second degree murder.
(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).
When a petition that is supported by the petitioner’s declaration that all three conditions are met and that makes a “prima facie showing that the petitioner falls within the provisions of [section 1170.95],” the sentencing court must issue an order to show cause. (§ 1170.95, subd. (c).)
It must then “hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) Should they wish, “[t]he parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” (§ 1170.95, subd. (d)(2).)
If, however, a hearing occurs, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. … The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3).)
Two recent Court of Appeal decisions have held that defendants cannot seek relief under Senate Bill No. 1437 in direct appeals but instead must file petitions under section 1170.95. (People v. Martinez (2019) 31 Cal.App.5th 719; accord People v. Anthony (2019) 32 Cal.App.5th 1102)
Court does not decide if 1437 Claim can be brought in a habeas petition
The Court did not decide whether the same reasoning applies to preclude the seeking of such relief in a habeas petition. (See § 1170.95, subd. (f) [“This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner”].) The court directed Taylor to seek to overturn his murder conviction by filing a section 1170.95 petition in the superior court.
In re Taylor, 2019 WL 1748683 (Cal.App. 1 Dist., April 19, 2019)