In re Scoggins

1
Filed 12/17/18 In re Scoggins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
In re WILLIE SCOGGINS
on Habeas Corpus.
C084358
(Super. Ct. No. 08F04643)
Samuel Wilson was murdered during the attempted commission of a robbery set
up by Willie Scoggins. Wilson had previously sold Scoggins three boxes purportedly
containing 50-inch flat-screen televisions. The boxes actually contained plywood
wrapped in bubble wrap. A few days later, Wilson encountered Scoggins’s girlfriend,
Shaneil Cooks, and her friend, Jennifer Kane, in a parking lot and offered Cooks the same
deal. Cooks informed Scoggins via text message that she found the man who had hustled
him. A short time later, Cooks and Kane lured Wilson to a different parking lot under the
guise of making a purchase. When Wilson arrived, in addition to Cooks and Kane, he
found two of Scoggins’s friends, James Howard and Randall Powell. Scoggins was also
nearby, in an adjacent parking lot. The plan, devised by Scoggins, was for Howard and
Powell to rob and “beat the shit out of” Wilson. When Wilson ran, Powell shot and
killed him.

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In 2011, a jury convicted Scoggins of first degree murder (Pen. Code, §§ 187,
189)1, finding true a robbery-murder special circumstance allegation (§ 190.2, subd.
(a)(17)), and attempted robbery (§§ 664/211). The jury also found a principal was armed
during the commission of the offenses. (§ 12022, subd. (a)(1).) As we explain more
fully in the discussion portion of the opinion, section 190.2, subdivision (d), provides in
relevant part that “every 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.) Based
on this provision, the trial court sentenced Scoggins to serve life without the possibility of
parole in state prison. In 2014, we affirmed the judgment entered against Scoggins and
rejected, among other assertions, his claim the robbery-murder special circumstance
finding was unsupported by sufficient substantial evidence he acted with reckless
indifference to human life. (People v. Kane et al., Howard, & Scoggins (Apr. 7, 2014,
C068209, C068210, C068971) [nonpub. opn.].) Our Supreme Court denied his petition
for review.
Thereafter, in 2015 and 2016, Scoggins filed various petitions for writ of habeas
corpus in the Sacramento County Superior Court and in this court, again challenging the
sufficiency of the evidence supporting the robbery-murder special circumstance finding.
Each was denied. In May 2016, Scoggins filed a petition for writ of habeas corpus in our
Supreme Court, also challenging the special circumstance finding. In the meantime, that
court decided People v. Banks (2015) 61 Cal.4th 788 (Banks), setting forth factors to be
1 Undesignated statutory references are to the Penal Code.

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used in determining whether or not a defendant’s “participation ‘in criminal activities
known to carry a grave risk of death’ [citation] was sufficiently significant to be
considered ‘major’ [citations]” (id. at p. 803), rendering him or her statutorily eligible for
the death penalty or life imprisonment without possibility of parole under section 190.2,
subdivision (d). While Scoggins’s habeas corpus petition was pending, our Supreme
Court also decided People v. Clark (2016) 63 Cal.4th 522 (Clark), setting forth factors to
be used in determining whether or not a defendant has “exhibited ‘reckless indifference
to human life’ within the meaning of [that subdivision]” (id. at p. 618) and holding as a
matter of first impression that “a defendant’s apparent efforts to minimize the risk of
violence” is a relevant factor in the analysis. (Id. at p. 622.)
In March 2017, our Supreme Court ordered the Secretary of the Department of
Corrections and Rehabilitation to show cause, returnable to this court, as to why Scoggins
is not entitled to relief in light of Banks, supra, 61 Cal.4th 788 and Clark, supra, 63
Cal.4th 522. Having reviewed the return to the order to show cause, as well as
Scoggins’s traverse thereto, we conclude these decisions do not entitle Scoggins to relief.
As we explain more fully below, there is a spectrum of conduct and culpability ranging
from a simple getaway driver, whose participation in the planned robbery was minimal
and who harbored no culpable mental state greater than an intent to participate in the
robbery, to the actual killer who intended to kill the victim. A sentence of death or life
without parole is warranted for those at the latter end of the spectrum, but not the former.
Most cases, however, are not so straightforward. Scoggins is at neither end of this
spectrum. His conduct and mental state fall somewhere between these extremes. As
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 make clear, in order to
qualify for the most severe punishments authorized by law, Scoggins must have been a
major participant in the attempted robbery of Wilson and must have exhibited reckless
indifference to his life. That is the line dividing the gray area of the spectrum.

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In this case, there is little doubt Scoggins was a major participant in the attempted
robbery. His involvement was substantial. He not only planned the robbery, but also
planned a violent assault to be delivered by two of his friends as payback for Wilson’s
fake television scam. Scoggins also watched his plan unfold from a nearby vantage point
and entered the crime scene after events turned deadly, not to render assistance, but in an
attempt to frustrate the investigation by giving false exculpatory statements to the
responding officers. Whether or not Scoggins exhibited reckless indifference to human
life is a closer call, but we conclude the record adequately supports such a finding. While
Scoggins was not the shooter, or in a position to stop Powell from pulling the trigger, and
apparently did not know a gun would be used during the planned robbery, he did plan for
the robbery to include physical violence against Wilson. Such violence was to be carried
out, as mentioned, by two friends, one of whom Scoggins knew to be a “hot head.” Thus,
this case is unlike Clark, supra, 63 Cal.4th 522, where the planned robbery did not
include violence as part of the plan. And perhaps more importantly, whereas the plan for
the robbery in Clark contained concrete steps aimed at minimizing the risk of violence of
any kind, here, not only did the plan itself call for Powell and Howard to “beat the shit
out of” Wilson, but it also contained no effort to minimize the risk that such violence
would result in death. In sum, we conclude the record adequately supports a conclusion
Scoggins was both a major participant in this attempted robbery and exhibited reckless
indifference to human life in carrying it out.
FACTS
We provide a condensed version of the facts we previously set forth in People v.
Scoggins, supra, C068971. However, for reasons explained therein, the facts recited in

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those consolidated appeals were based on the record produced in Howard’s appeal; this
condensed version relies entirely on the record produced in Scoggins’s appeal.2
In June 2008, Scoggins sold crack cocaine out of a house in South Sacramento
known as “the Trap.” Lorenzo McCoy, a partner in Scoggins’s drug dealing business,
lived at the Trap. Scoggins, Howard, and Powell were close friends and referred to each
other as “brothers.” At the time of the murder, Powell was dating Kane. Scoggins was
dating Cooks. Cooks and Kane were also close friends.
A few days before the murder, Scoggins bought what he believed to be three flat-
screen televisions from Wilson. After returning to the Trap, he discovered he actually
purchased three flat-screen television boxes containing plywood wrapped in bubble wrap.
Scoggins was upset that he had been swindled.
On June 8, 2008, Cooks and Kane were driving around in a white van. Wilson
was driving around in a blue van selling plywood as flat-screen televisions. The vans
crossed paths in a parking lot and Wilson made his pitch. Kane gave Wilson her cell
phone number and told Wilson she would ask her mother whether she wanted to buy a
television. At 5:40 p.m., apparently during Wilson’s sales pitch, Kane called Powell and
said, “they found the guy that sold them the fake TVs.” Powell was with another
girlfriend when he received this phone call and left her house saying, “he was going to
meet his brother [Howard].” Around this time, Cooks called Scoggins, but got his
voicemail. At 5:50 p.m., Powell called Scoggins and also got his voicemail. A few
minutes later, Powell called Scoggins again. This call was answered. At 5:55 p.m.,
Cooks sent the following text message to Scoggins: “Man you ain’t answering the phone
and the dude that sold you the TVs is in my face right now.”
2 We grant Scoggins’s request to take judicial notice of the record in that appeal,
People v. Scoggins, supra, C068971. (Evid. Code, § 452, subd. (d).)

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Meanwhile, after obtaining Kane’s phone number, Wilson apparently pretended he
had to return to work and drove away. A short time later, he called Kane and asked
whether she had talked to her mother. Kane responded: “Yeah, I talked to my mom, she
want it.” Wilson said he could take a break from work if Kane’s mother would meet him
to make the purchase. When asked for her mother’s phone number, Kane gave him
Cooks’s cell phone number. Wilson then called Cooks, who pretended to be Kane’s
mother, and told her he could take a break from work to make the sale. Wilson told
Cooks to meet him at Burlington Coat Factory on Florin Road in 10 minutes. Cooks
agreed.
Shortly before 6:00 p.m., while apparently on his way to meet Howard at the Trap,
Powell called Scoggins several times and his call was sent to voicemail each time.
Around the same time, Scoggins called McCoy at the Trap and told him that he found the
man who had sold him the fake televisions. Scoggins told McCoy the plan was to meet
the seller at Burlington Coat Factory and “beat the shit out of him and get the fucking
money back.” Howard was present at the Trap and also talked to Scoggins. Powell
arrived at some point and also told McCoy about the plan. Howard and Powell left the
Trap a short time later.
At about 6:30 p.m., when Wilson arrived at Burlington Coat Factory, he called
Cooks and told her to instead meet him at the Shell gas station across the street. Cooks
and Kane met Wilson in a small parking lot directly to the east of the Shell station. When
Wilson got out of his van to make the sale, he was confronted by Powell and Howard.
During the confrontation, Powell pulled a semi-automatic handgun and fired three or four
rounds. Wilson ran. Powell then fired two or three additional rounds, striking Wilson
twice in the back. Wilson did not survive these injuries.
When Wilson was shot and killed by Powell, Scoggins was at the Shell station.
According to one of his statements to law enforcement officers following the murder, he
was in his car at a gas pump on the west side of the Shell station when he heard “five, six

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shots,” but did not see what happened. He claimed he was there to meet another of his
girlfriends and it was a “crazy” coincidence his girlfriend Cooks was in the adjacent
parking lot when the shooting happened. However, from all of the evidence, including
the exchanges of phone calls and text messages recounted above and McCoy’s testimony
concerning Scoggins’s plan to rob and violently assault Wilson, the jury could have
reasonably concluded Scoggins was in the adjacent parking lot to watch his planned
robbery unfold.
After the shooting, Powell and Howard got into the white van and Kane, who was
driving the van, quickly pulled onto Florin Road. Scoggins pulled out of the Shell station
and entered the parking lot where Wilson lay bleeding on the ground. He did so,
according to his statement to police, because the other girlfriend he claimed he was
supposed to be meeting was in that parking lot with some of her friends. This person
testified that while she had previously dated Scoggins, they were not seeing each other at
the time and had not planned to meet at that parking lot or anywhere else. Scoggins told
her she should leave before police arrived or she likely would not be able to do so after
they taped off the parking lot. He then drove his car across the street, parked at the
Burlington Coat Factory, and returned on foot to provide a statement to police, who were
then arriving on the scene. After providing an exculpatory statement, Scoggins went to
the Trap, where he discussed the shooting with McCoy, Powell, and Howard.
DISCUSSION
I
Procedural Bars to Habeas Corpus Relief
“The right to habeas corpus is guaranteed by the state Constitution and ‘may not
be suspended unless required by public safety in cases of rebellion or invasion.’ (Cal.
Const., art. I, § 11.) Frequently used to challenge criminal convictions already affirmed
on appeal, the writ of habeas corpus permits a person deprived of his or her freedom,
such as a prisoner, to bring before a court evidence from outside the trial or appellate

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record, and often represents a prisoner’s last chance to obtain judicial review. . . .
‘Historically, habeas corpus provided an avenue of relief for only those criminal
defendants confined by a judgment of a court that lacked fundamental jurisdiction, that is,
jurisdiction over the person or subject matter’ [citation], but that view has evolved in
modern times and habeas corpus now ‘permit[s] judicial inquiry into a variety of
constitutional and jurisdictional issues’ [citation]. ‘Despite the substantive and
procedural protections afforded those accused of committing crimes, the basic charters
governing our society wisely hold open a final possibility for prisoners to prove their
convictions were obtained unjustly. [Citations.] A writ of “[h]abeas corpus may thus
provide an avenue of relief to those unjustly incarcerated when the normal method of
relief—i.e., direct appeal—is inadequate.” ’ [Citations.]” (In re Reno (2012) 55 Cal.4th
428, 449-450 (Reno).)
Notwithstanding “the importance of the ‘Great Writ,’ ” our Supreme Court has
established procedural rules limiting its use. (In re Clark (1993) 5 Cal.4th 750, 763-764,
superseded by statute on other grounds as stated in Briggs v. Brown (2017) 3 Cal.5th
808.) We first note sufficiency of the evidence claims generally may not be raised in a
petition for writ of habeas corpus. (Reno, supra, 55 Cal.4th at p. 514; In re Lindley
(1947) 29 Cal.2d 709, 723.) Another procedural rule “has come to be known as the
Waltreus[3] rule; that is, legal claims that have previously been raised and rejected on
direct appeal ordinarily cannot be reraised in a collateral attack by filing a petition for a
writ of habeas corpus.” (Reno, supra, 55 Cal.4th at p. 476.) This rule is “consistent with
the very nature of habeas corpus” as “an extraordinary remedy applicable when the usual
channels for vindicating rights―trial and appeal―have failed.” (Id. at p. 477.) And
because “habeas corpus cannot serve as a substitute for an appeal, . . . in the absence of
3 In re Waltreus (1965) 62 Cal.2d 218.

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special circumstances constituting an excuse for failure to employ that remedy, the writ
will not lie where the claimed errors could have been, but were not, raised upon a timely
appeal from a judgment of conviction.” (In re Dixon (1953) 41 Cal.2d 756, 759 (Dixon).)
This has come to be known as the Dixon rule.
Here, as previously mentioned, Scoggins challenged the sufficiency of the
evidence supporting the special circumstance finding in his direct appeal, asserting the
evidence did not support a finding he acted “with reckless indifference to human life.”
(§ 190.2, subd. (d).) We rejected that claim. He could have, but did not assert the
evidence was insufficient to support a finding he was a “major participant” in the
robbery-murder of Wilson. (Ibid.) Thus, unless there is an applicable exception, the
former assertion is barred by the Waltreus rule and the latter is barred by the Dixon rule.
Scoggins argues two exceptions apply: “(1) the superior court acted in excess of its
jurisdiction, and (2) the law has changed in [his] favor . . . .” Each claimed exception is
based on our Supreme Court’s decisions in Banks and Clark. Accordingly, before
addressing applicability of the exceptions, we describe these decisions in detail.
II
Banks and Clark
In Banks, supra, 61 Cal.4th 788, our Supreme Court interpreted section 190.2,
subdivision (d), explaining that subdivision “was designed to codify the holding of Tison
v. Arizona (1987) 481 U.S. 137[ [95 L.Ed.2d 127] (Tison)], which articulates the
constitutional limits on executing felony murderers who did not personally kill. Tison
and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782[ [73
L.Ed.2d 1140] (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.”
(Banks, supra, at p. 794.) Beginning with Enmund, our Supreme Court explained the
high court reversed a death sentence where the defendant, Enmund, was the getaway

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driver in a planned armed robbery that resulted in the unplanned murder of the robbery
victim and his wife. “The court found a broad consensus against imposing death in cases
‘where the defendant did not commit the homicide, was not present when the killing took
place, and did not participate in a plot or scheme to murder.’ [Citation.] Accordingly, it
held the Eighth Amendment bars the death penalty for any felony-murder aider and
abettor ‘who does not himself [or herself] kill, attempt to kill, or intend that a killing take
place or that lethal force will be employed.’ [Citation.] The intent to commit an armed
robbery is insufficient; absent the further ‘intention of participating in or facilitating a
murder’ [citation], a defendant who acts as ‘the person in the car by the side of the road at
the time of the killings, waiting to help the robbers escape’ [citation] cannot
constitutionally be sentenced to death.” (Id. at p. 799.)
Turning to Tison, supra, 481 U.S. 137, our Supreme Court explained the high
court upheld death sentences where the defendants, Ricky and Raymond Tison, along
with a third brother, “helped plan and carry out the escape of two convicted murderers
from prison,” including their father, Gary Tison, who “was serving a life sentence for
killing a guard in the course of a previous escape.” (Banks, supra, 61 Cal.4th at p. 802.)
The Tison brothers brought “a cache of weapons to prison, arm[ed] both murderers, and
[held] at gunpoint guards and visitors alike.” (Ibid.) “During the subsequent escape,
their car, already down to its spare tire, suffered another flat, so [they] agreed to flag
down a passing motorist in order to steal a replacement car. Raymond waved down a
family of four; the others then emerged from hiding and captured the family at gunpoint.
Raymond and [the third brother] drove the family into the desert in the Tisons’ original
car with the others following. Ricky and [his father’s] cellmate removed the family’s
possessions from their car and transferred the Tison gang’s possessions to it; Gary and his
cellmate then killed all four family members.” (Id. at p. 799.)
After “endorsing Enmund’s holding that the Eighth Amendment limits the ability
of states to impose death for ‘felony murder simpliciter[,]’ . . . Tison described the range

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of felony-murder participants as a spectrum. At one extreme were people like ‘Enmund
himself: the minor actor in an armed robbery, not on the scene, who neither intended to
kill nor was found to have had any culpable mental state.’ [Citation.] At the other
extreme were actual killers and those who attempted or intended to kill. [Citation.]
Under Enmund, Tison held, death was disproportional and impermissible for those at the
former pole, but permissible for those at the latter. [Citation.] The Supreme Court then
addressed the gray area in between, the proportionality of capital punishment for felony-
murder participants who, like the two surviving Tison brothers, fell ‘into neither of these
neat categories.’ [Citation.] Here, the court announced, ‘major participation in the
felony committed, combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.’ [Citation.] This is the language the
electorate codified in section 190.2[, subdivision ](d).” (Banks, supra, 61 Cal.4th at
p. 800.)
Elaborating on the actus reas requirement of major participation, our Supreme
Court endorsed a “gloss” placed on that phrase by this court in People v. Proby (1998) 60
Cal.App.4th 922, i.e., “that a defendant must have been actively and substantially
involved in the events leading up to a murder,” but further explained: “A sentencing court
must examine the defendant’s personal role in the crimes leading to the victim’s death
and weigh the defendant’s individual responsibility for the loss of life, not just his or her
vicarious responsibility for the underlying crime.” (Banks, supra, 61 Cal.4th at p. 801.)
The court then set forth the following factors to be used in determining whether or not a
“defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major’ [citations]” under section
190.2, subdivision (d): “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

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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? No
one of these considerations is necessary, nor is any one of them necessarily sufficient.
All may be weighed in determining the ultimate question . . . .” (Id. at p. 803.)
Applying this multi-factor test to the facts in Banks, the court held the evidence
was not sufficient to support a robbery-murder special circumstance finding as to one of
the defendants, Matthews, who was the getaway driver for an armed robbery during
which another defendant, Banks, shot and killed one of the robbery victims. (Banks,
supra, 61 Cal.4th at pp. 804-805.) The court explained: “The evidence in the record
places Matthews at the Enmund pole of the Tison–Enmund spectrum. Indeed, as
Matthews argues, his conduct is virtually indistinguishable from Earl Enmund’s. No
evidence was introduced establishing Matthews’s role, if any, in planning the robbery.
No evidence was introduced establishing Matthews’s role, if any, in procuring weapons.
Matthews and two confederates—though not the shooter—were gang members, but, in
contrast to the convicted murderers the Tison brothers chose to free and arm, no evidence
was introduced that Matthews[ or these confederates] had themselves previously
committed murder, attempted murder, or any other violent crime. The crime itself was an
armed robbery; Enmund and Tison together demonstrate that participation in an armed
robbery, without more, does not involve ‘engaging in criminal activities known to carry a
grave risk of death.’ [Citation.] During the robbery and murder, Matthews was absent
from the scene, sitting in a car and waiting. There was no evidence he saw or heard the
shooting, that he could have seen or heard the shooting, or that he had any immediate role
in instigating it or could have prevented it.” (Id. at p. 805, internal fns. omitted.) The
court concluded: “On this record, Matthews was, in short, no more than a getaway driver,
guilty like Earl Enmund of ‘felony murder simpliciter’ [citations] but nothing greater. As
such, he is ineligible for the death penalty under Tison and Enmund. Because

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section 190.2[, subdivision ](d) incorporates the Tison–Enmund standard, if the evidence
was insufficient to make Matthews death eligible under these cases, the evidence was
also insufficient to find the special circumstance true and Matthews eligible for life
imprisonment without parole under state law.” (Ibid.)
Finally, with respect to the mens rea requirement of reckless indifference to
human life, the court explained that “Tison, and in turn section 190.2[, subdivision ](d),
look to whether a defendant has ‘ “knowingly engag[ed] in criminal activities known to
carry a grave risk of death.” ’ [Citations.] The defendant must be aware of and willingly
involved in the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of death his or her actions
create.” (Banks, supra, 61 Cal.4th at p. 801.) Holding the evidence was also insufficient
to establish this mental state, the court explained: “There was evidence from which the
jury could infer Matthews knew he was participating in an armed robbery. But nothing at
trial supported the conclusion beyond a reasonable doubt that Matthews knew his own
actions would involve a grave risk of death. There was no evidence Matthews intended
to kill or, unlike the Tisons, knowingly conspired with accomplices known to have killed
before. Instead, as in Enmund, Banks’s killing of [the victim] was apparently a
spontaneous response to armed resistance from the victim.” (Id. at p. 807.)
In Clark, supra, 63 Cal.4th 522, our Supreme Court vacated robbery-murder and
burglary-murder special circumstance findings where the defendant was not merely guilty
of felony murder simpliciter, but was rather “the mastermind who planned and organized
the attempted robbery and who was orchestrating the events at the scene of the crime.”
(Id. at p. 612.) There, the defendant and his brother and cousin conducted surveillance of
a computer store, studying the number of employees and their activities around closing
time. Defendant also secured use of a U-Haul truck by having another person rent the
truck using a false driver’s license defendant helped her procure. (Id. at pp. 536, 612.)
The plan was for one man, Ervin, to enter the store around closing time with a gun, which

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was “apparently [supposed] to be unloaded,” and handcuff the remaining employees in
the restroom so no one could call the police. (Id. at p. 613.) Then, while defendant sat in
the parking lot in a BMW, his brother and another man, who apparently believed the
store belonged to defendant, were to help Ervin remove computers from the store and
load them into the U-Haul that was parked nearby. However, before any computers
could be removed, the mother of one of the handcuffed employees came into the store.
Ervin shot her in the head and fled to defendant’s car. Defendant drove away, leaving
Ervin to be apprehended in the parking lot by an officer who heard the gunshot while on
patrol near the store. The gun Ervin used to murder the victim had been loaded with one
bullet. (Id. at pp. 536-538, 613.)
Beginning with “the Banks factors concerning major participation,” the court
stated: “[W]e can conclude that defendant had a prominent, if not the most prominent,
role in planning the criminal enterprise that led to the death of [the victim]. No evidence
was presented about defendant’s role in supplying the weapon, although inferences can
be drawn from [the evidence] that use of a weapon was part of his plan for the robbery.
No evidence was presented about defendant’s awareness of the particular dangers posed
by the crime, beyond his concern to schedule the robbery after the store’s closing time.
No evidence was presented about his awareness of the past experience or conduct of
Ervin, the shooter. Defendant was in the area during the robbery, orchestrating the
second wave of the burglary after Ervin secured the store, but defendant was not in the
immediate area where Ervin shot [the victim].” (Clark, supra, 63 Cal.4th at pp. 613-
614.) The court then noted it previously upheld a major participant finding where “the
defendant, although not present at the murder, was ‘the founder, ringleader, and
mastermind behind’ a criminal gang engaged in carjacking,” and gave “his subordinate
gang members . . . ‘a carjacking tutorial and instructed them that a resisting victim was to
be shot.’ ” (Id. at p. 614, quoting People v. Williams (2015) 61 Cal.4th 1244, 1281.)
However, the court declined to decide whether or not the defendant qualified as a major

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participant under the Banks factors, concluding instead “the evidence was insufficient to
support that he exhibited reckless indifference to human life.” (Ibid.)
Before assessing the evidence supporting this mens rea element, the court noted
the two elements are interrelated such that “ ‘the greater the defendant’s participation in
the felony murder, the more likely that he acted with reckless indifference to human life.’
” (Clark, supra, 63 Cal.4th at p. 614, quoting Tison, supra, 481 U.S. at p. 153.) At the
same time, even significant participation in an armed robbery does not necessarily entail
possession of that mental state. (See id. at p. 617 [armed robbery, “on its own and with
nothing more presented, is not sufficient to support a finding of reckless indifference to
human life”].) “Tison held that the necessary mens rea for death eligibility may be
‘implicit in knowingly engaging in criminal activities known to carry a grave risk of
death.’ [Citation.] As examples, the high court cited: ‘the robber who shoots someone in
the course of the robbery, utterly indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking the victim’s property,’ and
‘the person who tortures another not caring whether the victim lives or dies’ as two
examples of such murderers. [Citation.] Notably, both examples involve a defendant
who personally killed the victim—not, as in this case, Enmund, Tison, or Banks, a
vicariously liable defendant who was not the actual killer. Nevertheless, these examples
provide some indication of the high court’s view of ‘reckless indifference,’ namely, that
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 pp. 616-617.) The court then explained the Model Penal Code’s
definition of recklessness contains subjective and objective elements: “The subjective
element is the defendant’s conscious disregard of risks known to him or her. But
recklessness is not determined merely by reference to a defendant’s subjective feeling
that he or she is engaging in risky activities. Rather, recklessness is also determined by

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an objective standard, namely what ‘a law-abiding person would observe in the actor’s
situation.’ [Citation.]” (Id. at p. 617.)
The court then applied the following factors to the facts before it in determining
whether or not the defendant was recklessly indifferent to human life within the meaning
of section 190.2, subdivision (d): Did the defendant know a gun would be used and/or
personally use a gun during the robbery? Was the defendant physically present at the
scene of the murder, and therefore provided with an opportunity to restrain the murderer
or aid the victim? What was the duration of the interaction between the perpetrators and
the victims? Did the defendant have knowledge of his or her cohort’s likelihood of
killing? Did the defendant apparently take steps to minimize the risk of violence? The
first four factors were culled from case law; the fifth was added as a matter of first
impression. (Clark, supra, 63 Cal.4th at pp. 618-622.) With respect to the latter factor,
the court explained: “If the evidence supports an argument that defendant engaged in
efforts to minimize the risk of violence in the felony, defendant may raise that argument
and the appellate court shall consider it as being part of all the relevant circumstances that
considered together go towards supporting or failing to support the jury’s finding of
reckless indifference to human life. But the existence of evidence that defendant made
some effort to minimize the risk of violence does not, in itself, necessarily foreclose a
finding that defendant acted with reckless indifference to human life . . . .” (Id. at
p. 622.) This is because, as noted above, recklessness has both subjective and objective
elements. Thus, “a defendant’s good faith but unreasonable belief that he or she was not
posing a risk to human life in pursuing the felony does not suffice to foreclose a
determination of reckless indifference to human life under Tison.” (Ibid.)
Applying the foregoing factors, the court held the evidence did not support a
conclusion the defendant was recklessly indifferent to human life. The court explained
while the defendant knew a gun would be used, that fact alone is insufficient to establish
reckless indifference. The only gun used during the attempted robbery was carried by

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Ervin, not the defendant, and that gun was loaded with only one bullet. (Clark, supra, 63
Cal.4th at pp. 618-619.) Unlike Tison, where the Tison brothers were “physically present
during the entire sequence of events culminating in the murders,” and were therefore
presented with “an opportunity to act as a restraining influence on murderous cohorts,”
the defendant in Clark was in his car in the parking lot when the victim was shot and was
not provided with such an opportunity. (Id. at p. 619.) Acknowledging “[t]he jury may
have inferred that [the defendant] was aware [the victim] had been shot when he drove
from the scene,” indicating a “desire to flee the scene as quickly as possible, without
regard for [the] welfare . . . of the shooting victim,” the court nevertheless distinguished
this level of culpability from that of the Tison brothers because, “unlike in [Tison],
defendant would have known that help in the form of police intervention was arriving.”
(Id. at p. 620.)
With respect to duration of the interaction between victims and perpetrators, the
court noted the defendant planned the robbery for closing time, when most employees
would be gone, and those who remained would be handcuffed in the bathroom. Thus,
while the robbery would take some time to complete, “the period of interaction between
perpetrators and victims was designed to be limited.” (Clark, supra, at p. 620.) At the
same time, the court explained, “[b]ecause the robbery was planned for a public space
and involved the prolonged detention of employees, the crime did involve the risk of
interlopers, such as [the murder victim]. But overall, the evidence was insufficient to
show that the duration of the felony under these circumstances supported the conclusion
that defendant exhibited a reckless indifference to human life.” (Id. at pp. 620-621.)
There was no evidence Ervin was known to have a propensity for violence or the
defendant had any knowledge of such a propensity. (Id. at p. 621.)
Finally, the court considered the defendant’s “apparent efforts to minimize the
risks of violence,” i.e., (1) the robbery was planned for closing time when most
employees would be gone, (2) the gun was apparently supposed to have been unloaded,

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and (3) the gun was loaded with only one bullet (Clark, supra, at pp. 621-622), and
concluded: “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, and we therefore vacate them.” (Id. at p. 623.)
III
Exceptions to the Waltreus/Dixon Rules
We now turn to the question of whether Banks and Clark entitle Scoggins to
reraise, and also broaden, his challenge to the sufficiency of the evidence to support his
robbery-murder special circumstance in this petition for habeas corpus. Scoggins argues
two exceptions to the Waltreus/Dixon rules apply: “(1) the superior court acted in excess
of its jurisdiction, and (2) the law has changed in [his] favor . . . .” We address each
exception in turn.
A.
Excess of Jurisdiction
“Habeas corpus is available in cases where the court has acted in excess of its
jurisdiction. [Citations.] For purposes of this writ as well as prohibition or certiorari, 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

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powers as defined by constitutional provision, statute, or rules developed by courts.
[Citations.] In accordance with these principles a defendant is entitled to habeas corpus if
there is no material dispute as to the facts relating to his [or her] conviction and if it
appears that the statute under which he [or she] was convicted did not prohibit his
conduct.” (In re Zerbe (1964) 60 Cal.2d 666, 666-668.)
In People v. Mutch (1971) 4 Cal.3d 389 (Mutch), our Supreme Court applied this
exception to the Waltreus/Dixon rules to allow the defendant to raise a sufficiency of the
evidence claim after his conviction became final. There, the defendant was convicted of
kidnapping for purposes of robbery under section 209. At the time, the court had
“construed the words ‘kidnaps or carries away’ to mean the act of forcibly moving the
victim any distance whatever, no matter how short or for what purpose.” (Id. at p. 393.)
After the defendant’s conviction became final, the court decided People v. Daniels (1969)
71 Cal.2d 1119 (Daniels), holding, “the intent of the Legislature in amending [that
section] was to exclude from its reach . . . those [robberies] in which the movements of
the victim are merely incidental to the commission of the robbery and do not substantially
increase the risk of harm over and above that necessarily present in the crime of robbery
itself.” (Id. at p. 1139.) As the court explained in Mutch, “the purpose of our decision in
Daniels was not to ‘redefine’ the crime of [kidnapping] to commit robbery―under our
tripartite system of government, that power is vested exclusively in the legislative
branch―but simply to declare what the intent of the Legislature has been in this regard
since the enactment of the 1951 amendment to section 209.” (Mutch, supra, at p. 394.)
Because there was “no material dispute as to the nature and extent of the movements
which [the] defendant compelled his victims to perform,” and under a proper reading of
the statute those movements “did not amount to the conduct proscribed by section 209”
(id. at p. 397), the defendant was entitled to habeas corpus relief from his improper
conviction. (Id. at p. 399.)

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Here, just as Daniels declared the intent of the Legislature in amending section
209, our Supreme Court’s decision in Banks declared the intent of the electorate in
enacting section 190.2, subdivision (d), i.e., “to bring ‘state law into conformity with[
Tison]’ . . . .” (Banks, supra, 61 Cal.4th at p. 798.) In order to carry out that intent, the
court set forth a list of factors, drawn from Tison and Enmund, relevant to determining
whether or not sufficient substantial evidence supports a finding the defendant was a
major participant within the meaning of section 190.2, subdivision (d). Clark then did
the same with respect to the mens rea element of the special circumstance. (Clark, supra,
63 Cal.4th at pp. 618-622.) Thus, if there is no material dispute as to the facts relevant to
Scoggins’s placement on the spectrum between Enmund and the Tison brothers, and a
proper reading of the statute, i.e., one that includes use of the multi-factor tests set forth
in Banks and Clark, places Scoggins’s conduct far enough on the Enmund side of the
spectrum to preclude eligibility for the death penalty or life without parole, he would be
entitled to habeas corpus relief from the special circumstance finding.
There is no material dispute as to the facts relevant to Scoggins’s placement on the
spectrum between Enmund and the Tison brothers. Scoggins desired payback for
Wilson’s fake television scam. When Cooks and Kane encountered Wilson the day of
the murder and informed Scoggins, he hastily put together a plan to rob and “beat the shit
out of” Wilson, using his close friends Howard and Powell to carry out the violent
retribution while he oversaw events from a nearby vantage point. Scoggins chose neither
the time nor the location for the robbery, as those depended on when and where Wilson
wanted to meet Cooks and Kane to attempt to run the same scam on them. In all,
Scoggins had less than an hour to make the plan and set it in motion. But unlike the plan
devised by the defendant in Clark, the plan was exceedingly simple: rob and violently
assault Wilson when he showed up to meet Cooks and Kane. When Powell pulled a gun
and fired off a few rounds, Wilson ran. Powell then shot him twice in the back. Powell,
Howard, Cooks, and Kane then fled together while Scoggins, who was nearby but not

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close enough to obviously have been involved, stayed at the scene to provide a statement
to the responding officers before rejoining his accomplices at the Trap.
The question, then, is: Do these facts render Scoggins ineligible for the special
circumstance? If so, the sentence of life without parole was imposed in excess of
jurisdiction and Scoggins is entitled to habeas corpus relief. We therefore apply the
Banks/Clark factors to these facts.
1. Major Participation
What role did the defendant have in planning the criminal enterprise that led to
one or more deaths? Unlike the defendants in Enmund and Banks, Scoggins is not merely
guilty of felony murder simpliciter. Instead, like the defendant in Clark, he was the one
who planned and set this robbery-murder in motion. However, his participation was also
not as extensive as that of the Tison brothers or the “ringleader” in People v. Marshall
(1990) 50 Cal.3d 907 (Marshall), who devised a plan to steal guns from the home of a
childhood friend when no one was supposed to be home and “ ‘command[ed] the
mission’ as its ‘leader[,]’ ” deciding to continue with the plan after it was determined
someone, the ultimate murder victim, was home. (Id. at pp. 921, 938.) Nevertheless,
Scoggins’s planning activity was at least as substantial as that of the defendants in People
v. Mora (1995) 39 Cal.App.4th 607, 617, and People v. Bustos (1994) 23 Cal.App.4th
1747, 1754, who each assisted in the planning of an armed robbery that resulted in death
and were held to be major participants based in part on that planning activity. Here,
Scoggins was the source of the plan to rob and violently assault Wilson.
What role did the defendant have in supplying or using lethal weapons? There is
no evidence Scoggins supplied the gun Powell used to murder Wilson. Nor is there any
evidence Scoggins himself was armed or used a weapon.
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?
Scoggins, as the planner of this particular robbery, was fully aware the robbery would

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include violence. The plan was to “beat the shit out of [Wilson] and get the fucking
money back.” While there is no evidence he knew Powell was armed, nor is there any
evidence he was surprised Powell had the gun or surprised Powell shot Wilson. (See
People v. Bustos, supra, 23 Cal.App.4th at p. 1754.) By his own account of events, he
calmly drove from the Shell station to the adjacent parking lot where Wilson lay bleeding
on the ground, told a former girlfriend who was also in that parking lot to leave before
police arrived if she did not want to be stuck there, drove across the street to the
Burlington Coat Factory parking lot, where he parked his car, and then returned to the
crime scene on foot to provide an exculpatory statement to police. These actions are not
consistent with someone who was surprised by the violent turn of events.
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? As already indicated, Scoggins was not in the parking lot where Wilson
was fatally shot. He was in the Shell parking lot a short distance away. From all the
evidence, a jury could have reasonably concluded he was there to watch events unfold
from a distance. Indeed, having been the one who was scammed by Wilson, Scoggins
likely concluded he needed to be out of sight in order for Wilson to get out of his van to
make the deal. Thus, while Scoggins was nearby, we cannot conclude he was in a
position to facilitate or prevent Wilson’s murder. In this regard, the case is similar to
Clark, where the defendant “was in the area during the robbery . . . but defendant was not
in the immediate area where Ervin shot [the victim].” (Clark, supra, 63 Cal.4th at
pp. 613-614.)
What did the defendant do after lethal force was used? As mentioned, after the
shooting, Scoggins drove to the parking lot where Powell shot Wilson. However, he did
so not to render aid to Wilson, but rather to attempt to convince a former girlfriend who
was in that parking lot to leave before police arrived. He then drove across the street to
park his car and returned to the scene on foot to provide a statement to the responding

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officers in order to make it appear as though he was simply a witness and not involved in
the murder. Nevertheless, because others were in the parking lot rendering assistance and
calling for help, this factor is essentially a wash.
In all, we conclude these factors support the conclusion Scoggins was a major
participant in the robbery-murder. As our Supreme Court explained in Banks, supra,
61Cal.4th 788: “No one of these considerations is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the ultimate question.” (Id. at
p. 803.) Here, we have planning activity that included violence against the victim as an
element of the plan. Based on Scoggins’s personal role in this robbery-murder, we have
no difficulty concluding he was “actively and substantially involved in the events leading
up to [the] murder.” (Id. at p. 801.) Indeed, aside from the shooter, of the five people
involved, Scoggins’s role was by far the most important.
2. Reckless Indifference to Human Life
Several of the Clark factors overlap the Banks factors discussed above. However,
we now view those factors as bearing on the question of Scoggins’s mental state rather
than his status as a major participant.
Did the defendant know a gun would be used and/or personally use a gun during
the robbery? Again, there is no evidence Scoggins personally used a gun during the
robbery or knew Powell had one. Similarly, in Clark, the defendant who planned the
robbery did not use a gun; and while he knew a gun was to be used, the court credited
evidence indicating that gun was supposed to be unloaded. We see little practical
difference between a defendant with no knowledge of a gun’s presence and one with such
knowledge but who honestly believes it is unloaded. Thus, this factor cuts in Scoggins’s
favor.
Was the defendant physically present at the scene of the murder, and therefore
provided with an opportunity to restrain the murderer or aid the victim? As we have
already explained, we must conclude the answer to this question is no, at least with

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respect to Scoggins’s ability to prevent Powell from shooting Wilson. There is no
evidence Scoggins was close enough to do so. And with respect to aiding Wilson, we
have already explained that factor is a wash since others were calling for emergency
assistance when Scoggins got to the adjacent parking lot.
What was the duration of the interaction between the perpetrators and the victims?
We conclude this factor is largely irrelevant to the facts of this case. It was relevant in
Clark, supra, 63 Cal.4th 522 because the defendant planned for a short and hopefully
peaceful interaction between the gunman and the store employees as he took them to the
restroom and handcuffed them. While resistance certainly could have occurred during
this period of time, because that time period was short, the risk of the gunman using
deadly force to enforce compliance was reduced. Here, the duration of the interaction
between Wilson and Scoggins’s enforcers was short because Scoggins planned for the
interaction to be violent and Wilson ran.
Did the defendant have knowledge of his or her cohort’s likelihood of killing?
During oral argument, in response to questioning concerning this factor, the Attorney
General relied on a portion of one of Scoggins’s police interviews in which he claimed he
did not know Powell was the shooter, but then said if Powell did shoot Wilson, “his hot
head got him in trouble.” Because Scoggins and Powell were close friends, the jury
could have reasonably concluded he was in a position to know Powell was prone to
quickly become angry or was easily provoked to violence. We cannot conclude from
this, as the Attorney General further argued, that Scoggins also knew Powell was armed
and therefore likely to shoot Wilson to death. However, because Scoggins’s plan was for
Powell and Howard to “beat the shit out of [Wilson] and get [Scoggins’s] fucking money
back,” using a hothead for that purpose does make a resulting murder more likely than
using someone with a more even disposition.
Did the defendant apparently take steps to minimize the risk of violence? No.
This is the factor that most sharply distinguishes this case from Clark. As we have

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described, the robbery in Clark was planned for closing time when most employees
would be gone, the gun was apparently supposed to have been unloaded, and the gun was
loaded with only one bullet. (Clark, supra, at pp. 621-622.) Our Supreme Court held
these facts supported a conclusion the defendant “planned the crime with an eye to
minimizing the possibilities for violence.” (Id. at p. 623.) Moreover, the court continued,
“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.” (Ibid.) Here, far from
planning the robbery with an eye to minimizing the possibility of violence, the plan itself
included a violent assault. Thus, unlike Clark, the possibility of violence was not
minimized, but rather assured. And while we accept for purposes of this analysis that
Scoggins did not intend for that violence to be lethal, there is also nothing in the record to
indicate he carefully planned a nonlethal assault on Wilson. Quite the contrary. The plan
was hastily put together and simply involved Scoggins, Powell, and Howard going to the
location Wilson selected to meet Cooks and Kane in order to rob and “beat the shit out of
him.”
In all, we conclude these factors support the conclusion Scoggins acted with
reckless indifference to human life. As our Supreme Court has phrased the inquiry, he
was “aware of and willingly involved in the violent manner in which the [attempted
robbery was] committed, demonstrating reckless indifference to the significant risk of
death his . . . actions create[d].” (Banks, supra, 61 Cal.4th at p. 801.)
B.
Change in the Law
Scoggins also argues he is entitled to reraise his sufficiency of the evidence claim
despite the Waltreus/Dixon rules because Banks and Clark effected a “change in the law
in petitioner’s favor.” (In re Coley (2012) 55 Cal.4th 524, 537.) This exception applies
where a new rule of law must be applied retroactively to the petitioner’s case despite
finality of the judgment. (See In re Jackson (1964) 61 Cal.2d 500, 501-507 [petitioner

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entitled to habeas corpus relief where certain evidentiary and other claims were raised
and rejected in his appeal, but retroactive application of two subsequent decisions of our
Supreme Court to the facts of petitioner’s case established prejudicial error].) Here,
however, as in Mutch, supra, 4 Cal.3d 389, the court in Banks and Clark “did not change
any such evidentiary or procedural rules,” but instead “confirmed a substantive definition
of [the special circumstance] duly promulgated by the [electorate].” (Id. at p. 395.) In
other words, the court did not change the law with respect to what was required to satisfy
the special circumstance, but rather “declare[d] what the intent of the [electorate] has
been in this regard since the enactment of [section 190.2, subdivision (d)].” (Id. at p.
394.) For this reason, there is no need to examine retroactivity of these decisions under
the change in the law exception. (Id. at pp. 394-395.)
Nor does Scoggins argue application of the Banks and Clark factors to the facts of
his case would be different under this exception as opposed to the excess of jurisdiction
exception. We have already rejected his assertion Banks and Clark entitle him to relief.
The same would be true even if we were to conclude these decisions set forth new rules
of law.
IV
Due Process
Finally, defendant asserts he is entitled to habeas corpus relief because “the Due
Process Clause of the Fourteenth Amendment forbids a State to convict a person of a
crime without proving the elements of that crime beyond a reasonable doubt.” (Fiore v.
White (2001) 531 U.S. 225, 228-229 [148 L.Ed.2d 629] (Fiore).) In Fiore, after the
defendant’s conviction for violating a certain Pennsylvania statute became final, that
state’s Supreme Court “interpreted the statute for the first time, and made clear that [the
defendant’s] conduct was not within its scope.” (Id. at p. 226.) After granting certiorari
to review the Third Circuit’s decision reversing the district court’s grant of habeas corpus
relief, the United States Supreme Court certified a question to the Pennsylvania Supreme

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Court, specifically whether its interpretation of the statute set forth in the new case stated
the correct interpretation of the statute on the date of the defendant’s conviction. The
Pennsylvania Supreme Court answered that it did. (Id. at p. 228.) In light of this
response, the high court held the conviction violated due process. The court explained
that because the new case did not change the law of Pennsylvania, but rather clarified
what the law was at the time of the defendant’s conviction, there was “no issue of
retroactivity.” (Ibid.) Instead, the question was “simply whether Pennsylvania can,
consistently with the Federal Due Process Clause, convict [the defendant] for conduct
that its criminal statute, as properly interpreted, does not prohibit.” (Ibid.) The high
court held it could not.
Here, there is similarly no issue of retroactivity, as we have already explained.
But unlike Fiore, the new cases upon which Scoggins relies―Banks and Clark―do not
make clear Scoggins’s conduct was not within the scope of section 190.2, subdivision (d).
Instead, as we have explained in detail, Scoggins’s conduct was far enough on the Tison
brothers’ side of the major participant-reckless indifference spectrum to qualify for the
special circumstance. Accordingly, there was no violation of Scoggins’s right to due
process under the federal Constitution.
DISPOSITION
The order to show cause is discharged and the petition for writ of habeas corpus is
denied.
/s/
HOCH, J.
I concur:
/s/
ROBIE, Acting P. J.

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Renner, J., Concurring and Dissenting.
I concur in the majority opinion except for part III.A.2 of the Discussion, from
which I respectfully dissent. I disagree with the majority’s conclusion that Scoggins
acted with reckless indifference to human life.
The majority sets out the applicable standard and its origins in detail, but one point
requires additional emphasis: Awareness of a foreseeable risk of death is insufficient to
establish a reckless indifference to human life; “only knowingly creating a ‘grave risk of
death’ satisfies the constitutional minimum.” (People v. Banks (2015) 61 Cal.4th 788,
808 (Banks).) The facts of this case are insufficient to establish the defendant knowingly
created such a grave risk. To conclude otherwise turns the planning of an unarmed
beating and robbery, that unexpectedly results in death, into a crime eligible for the death
penalty or life without the possibility of parole. In my view, that expansive result
deviates from the guidance of our Supreme Court limiting eligibility for these penalties.
As explained by the majority, in People v. Clark (2016) 63 Cal.4th 522 (Clark),
our Supreme Court identified the following factors to consider when determining whether
a non-shooter aider and abettor acted with reckless indifference to human life in armed
robbery felony murders: (1) knowledge of weapons, and use and number of weapons; (2)
physical presence at the crime and opportunities to restrain the crime and/or aid the
victim; (3) duration of the felony; (4) the defendant’s knowledge of a cohort’s likelihood
of killing; and (5) the defendant’s efforts to minimize the risks of the violence during the
felony. (Id. at pp. 618-621.) While I agree with the majority’s conclusions regarding
several of these factors, I review them each individually to explain why, on balance, they
demonstrate that Scoggins was not recklessly indifferent to human life as that concept has
been defined by our Supreme Court.

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1. Knowledge of Weapons, and Use and Number of Weapons
“A defendant’s use of a firearm, even if the defendant does not kill the victim or
the evidence does not establish which armed robber killed the victim, can be significant
to the analysis of reckless indifference to human life.” (Clark, supra, 63 Cal.4th at p.
618.) But a defendant’s awareness that a gun will be used in the felony is not enough by
itself to establish reckless indifference to human life. (Ibid.) Here, there is no evidence
Scoggins personally used a gun during the robbery or knew that Powell had one. As the
majority concedes, this factor cuts in Scoggins’s favor. (Maj. opn. ante, at p. 23.) I
strongly agree with the majority on this point, and would emphasize that the gun that
killed Wilson was not part of Scoggins’s plan.
2. Physical Presence at the Crime and Opportunities to Restrain the Crime
and/or Aid the Victim
“In Tison[ v. Arizona (1987) 481 U.S. 137, [95 L.Ed.2d 127] (Tison)] the high
court stressed the importance of presence to culpability. Each Tison brother was
physically present during the entire sequence of events culminating in the murders.
[Citation.] Proximity to the murder and the events leading up to it may be particularly
significant where, as in Tison, the murder is a culmination or a foreseeable result of
several intermediate steps, or where the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal force. In such cases, ‘the
defendant’s presence allows him to observe his cohorts so that it is fair to conclude that
he shared in their actions and mental state. . . . [Moreover,] the defendant’s presence
gives him an opportunity to act as a restraining influence on murderous cohorts. If the
defendant fails to act as a restraining influence, then the defendant is arguably more at
fault for the resulting murders.’ ” (Clark, supra, 63 Cal.4th at p. 619.) The majority
concludes Scoggins was not close enough to prevent Powell from shooting Wilson.
(Maj. opn. ante, at p. 23.) Further, Scoggins was not physically present at the scene of
the murder. While he was within view of the scene, the evidence shows that he was

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purposefully far enough from the actual crime scene to prevent the victim from realizing
he was about to be robbed. “At the same time, physical presence is not invariably a
prerequisite to demonstrating reckless indifference to human life. Where, for example, a
defendant instructs other members of a criminal gang carrying out carjackings at his
behest to shoot any resisting victims, he need not be present when his subordinates carry
out the instruction in order to be found to be recklessly indifferent to the lives of the
victims.” (Clark, supra, at p. 619.) As in Clark, there was no evidence Scoggins
instructed Powell to use lethal force. (Ibid.) The plan was generally to “beat the shit out
of [Wilson] and get the fucking money back.” The failure to render aid may also be
considered. (Ibid.) The majority concludes this particular question results in a wash.
(Maj. opn. ante, at p. 23.) While I agree, the factor as a whole is not neutral. In my view,
the fact that Scoggins drove separately to view the robbery as his cohorts conducted it
meant he lost control over the unfolding of those events, and our ability to infer that he
shared Powell’s mental state is weakened. (See Clark, supra, at p. 620 [“Defendant’s
absence from the scene of the killing and the ambiguous circumstances surrounding his
hasty departure make it difficult to infer his frame of mind concerning Lee’s death”].)
Overall, the second factor does not suggest Scoggins shared in Powell’s decision to shoot
the victim or exhibited a reckless indifference to human life.
3. Duration of the Felony
“Courts have looked to whether a murder came at the end of a prolonged period of
restraint of the victims by defendant. . . . Where a victim is held at gunpoint, kidnapped,
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 duration of the interaction between victims and perpetrators is therefore one
consideration in assessing whether a defendant was recklessly indifferent to human life.”
(Clark, supra, 63 Cal.4th at p. 620, fn. omitted.) The majority concludes that this factor

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was largely irrelevant to the facts of this case. (Maj. opn. ante, at p. 23.) I do not
disagree.
4. Scoggins’s Knowledge of Powell’s Likelihood of Killing
“A defendant’s knowledge of factors bearing on a cohort’s likelihood of killing are
significant to the analysis of reckless indifference to human life. Defendant’s knowledge
of such factors may be evident before the felony or may occur during the felony. Tison,
for example, emphasized the fact that the Tison brothers brought an arsenal of lethal
weapons into the prison which they then handed over to two convicted murderers, one of
whom the brothers knew had killed a prison guard in the course of a previous escape
attempt. [Citation.] The Supreme Court of Arizona, in affirming that a defendant had
acted with reckless indifference to human life, noted that he was aware that his cohort in
a series of robberies ‘had a violent and explosive temper.’ ” (Clark, supra, 63 Cal.4th at
p. 621.) Despite the significance of this factor, the evidence that Scoggins had
knowledge Powell would likely kill the victim is notably absent. The majority observes
that “because Scoggins’s plan was for Powell and Howard to ‘beat the shit out of
[Wilson] and get [Scoggins’s] fucking money back,’ using a hothead for that purpose
does make a resulting murder more likely than using someone with a more even
disposition.” (Maj. opn. ante, at p. 25.) But more likely than what?
As mentioned at the outset, merely creating a foreseeable risk of death is not
enough. “Nationally, thousands of armed robberies occur each year; per Enmund [v.
Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140] ], only roughly 1 in 200 results in death.”
(Banks, supra, 61 Cal.4th at p. 811.) Our Supreme Court explained in Banks that
“[a]wareness 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.” (Id. at p. 808.) The fact that after the crime was committed defendant said, if
Powell did shoot Wilson, “his hot head got him in trouble” is interesting, but this after-
the-fact explanation for Powell’s behavior is insufficient to support a conclusion that

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defendant knew before the felony that Powell was likely to inflict either a deadly beating
or carry and use a gun. In Tison, the evidence that a well-armed cohort was likely to kill
was much clearer. In analyzing a record for sufficiency of the evidence, there is a fine
line between reasonable inferences and speculation, but here the evidence Scoggins was
aware that Powell was likely to kill falls on the side of speculation.
5. Scoggins’s Efforts to Minimize the Risks of the Violence During the Felony
“[A] defendant’s apparent efforts to minimize the risk of violence can be relevant
to the reckless indifference to human life analysis. If the evidence supports an argument
that defendant engaged in efforts to minimize the risk of violence in the felony, defendant
may raise that argument and the appellate court shall consider it as being part of all the
relevant circumstances that considered together go towards supporting or failing to
support the jury’s finding of reckless indifference to human life.” (Clark, supra, 63
Cal.4th at p. 622.) In Clark, there was evidence in the record that the defendant had
taken efforts to minimize the risks of violence: “First, the attempted robbery was
undertaken after closing time, when most of the employees had left the building. Second,
there were not supposed to be any bullets in the gun . . . . Third, the gun, as recovered
after the shooting, had only been loaded with one bullet.” (Id. at pp. 621-622.) The
majority concludes that this is the factor that “most sharply distinguishes this case from
Clark.” (Maj. opn. ante, at p. 25.) I view the weight of this factor quite differently. The
majority asserts the possibility of violence was assured, rather than minimized, as in
Clark, because Scoggins planned a violent beating. (Maj. opn. ante, at p. 25.) This
distinction hinges on the import of planning a violent, but unarmed, beating designed to
recover money from the victim. Scoggins’s plan included violence, certainly, but the
need to minimize the risk of violence when planning an unarmed beating is less pressing
than the need to minimize the risk of violence when planning an armed robbery. The
record does not contain any indication the defendant planned a beating involving the use
of weapons. This fact is, by itself, a significant step towards minimizing the likelihood

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that the plan would result in a “grave risk of death.” Thus, I cannot view Scoggins’s
failure to further minimize this risk as being sufficient to distinguish this case from Clark.
Nor can I necessarily view this factor as dispositive in light of the lack of other factors
suggesting reckless indifference on the part of Scoggins.
To summarize, after considering the “aspects of the present felony that provide
insight into both the magnitude of the objective risk of lethal violence and a defendant’s
subjective awareness of that risk” (Clark, supra, 63 Cal.4th at p. 623), I conclude
insufficient evidence supports the conclusion Scoggins acted with reckless indifference to
human life. As in Clark, Scoggins’s culpability for Wilson’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 [the] murder.” (Ibid.) In
Clark, our Supreme Court noted “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.” (Ibid.) Here, there is little evidence regarding any plan, and what evidence
there is does not suggest an elevated risk to human life beyond those risks inherent in an
unarmed beating and robbery. The weapon used to kill Wilson was not part of the plan.
Even the planning of an armed robbery does not, without more, support a conclusion of
reckless indifference to human life. The evidence suggests Scoggins’s plan created a risk
to Wilson. But Powell’s surprise deviation from that plan does not make Scoggins
recklessly indifferent to Wilson’s life. Accordingly, I respectfully dissent from part
III.A.2.
/s/
RENNER, J.

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