NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

G057175
In re SHAWN MALONE KHALIFA
(Super. Ct. No. SWF006720)
on Habeas Corpus.
OPINION

Original proceedings; petition for a writ of habeas corpus to challenge a

judgment of the Superior Court of Riverside County, Judith C. Clark, Judge. Petition
granted.
Jennifer Peabody, under appointment by the Court of Appeal, for
Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne
S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Respondent.
 Petitioner Shawn Malone Khalifa was convicted of special circumstances
felony murder for aiding and abetting a home invasion robbery that led to the death of 77-
year-old Hubert Love. Although petitioner was involved in the robbery, he neither killed,
nor intended to kill, Love. Thus, his liability on the special circumstance allegations
turned on whether he 1) was a “major participant” in the robbery, and 2) acted with
1
“reckless indifference” to Love’s life. (Pen. Code, § 190.2, subd. (d).) Petitioner
contends there is insufficient evidence to support these elements, and we agree.
Accordingly, we grant his petition for a writ of habeas corpus and reverse the jury’s true
finding on the special circumstance allegations.
FACTS
In the early evening hours of January 27, 2004, petitioner was hanging out
with his friends Mark Gardner, Juan Pena and Fernando Rivera at his home in Perris. At
the time, petitioner was 15 years old, and his companions, although slighter older, were
also in their teens. Their conversation turned to money, or more precisely the lack
thereof, and Rivera mentioned there was an “old guy” – Love – who lived just around the
corner that they could rob. The prospect of robbing Love fueled discussion amongst the
group for several minutes. During that time, no one expressly agreed with Rivera’s
suggestion that they rob Love, but no one objected to it either. Without discussing any
details about how they were going to carry out the robbery, the four teens just started
walking toward Love’s house.
Rivera and Pena led the way, with petitioner and Gardner in tow. When
they reached Love’s house, Rivera and Pena knocked on the front door and went inside.
Petitioner and Gardner stayed out front for some time before eventually making their way
to the side of the house. Petitioner told Gardner to wait there. Then he went around
back, entered the house through the rear sliding glass door and began searching through

1
All further statutory references are to the Penal Code.

2
Love’s kitchen. From his position outside the house, Gardner could see and hear
petitioner rummaging through Love’s silverware drawer. Gardner also heard Rivera tell
someone, “Shut the fuck up, you’re being too loud.”
Rivera had good reason not to want to draw attention to his group’s
activities; not only were they looking for things to steal, but he and Pena beat Love to
death when they encountered him in the living room. There was no direct evidence
petitioner witnessed the beating or even saw Love at any time during the incident.
However, he did tell his mother afterwards that he had heard Love moan at one point.
Rivera and Pena were in Love’s house for about 15 minutes, but petitioner
was only inside a couple minutes before he ran out the rear door and joined Gardner
outside. Petitioner was visibly nervous at that time. As he and Gardner began walking
down the street, Rivera and Pena left Love’s house through the front door. Using Love’s
keys, they stole his car and drove the vehicle a short distance to where petitioner and
Gardner were located. Rivera told them to get into the car, and petitioner hopped in the
backseat. Gardner opted to walk home instead. He was not witness to subsequent events
that evening, which included Rivera fatally shooting Pena in the head with a handgun
Pena had stolen from Love’s house. The only thing petitioner took from the house was
some liquor-filled chocolates that were found in the backseat of Love’s car.
Love’s body was discovered two days after he was murdered. The medical
examiner determined he died from severe blunt force trauma to the head, face and torso,
indicating Rivera and Pena hit and kicked him multiple times with maximum force.
Despite being outnumbered, it appears Love put up a pretty good fight; his living room
was in disarray and blood was splattered throughout the room. There was also a trail of
bloody footprints leading from the room to the rear sliding glass door of Love’s house,
but investigators were unable to identify the source of those prints.
Petitioner was not charged in connection with Pena’s killing, but he was
charged with first degree felony murder for Love’s death. (§ 189, subd. (a).) So were

3
Rivera and Gardner. All three men also faced special circumstance allegations that
Love’s murder occurred during the commission of a robbery and during the commission
of a burglary. (§ 190.2, subd. (A)(17)(a), (g).) Gardner pleaded guilty to manslaughter
and robbery in exchange for testifying against petitioner and Rivera, who were jointly
tried before separate juries. During deliberations, petitioner’s jury asked if they could
convict him of a less serious offense than murder, and the judge told them no. They
ultimately convicted petitioner of first degree murder and found the special circumstance
allegations true. The judge sentenced him to an indeterminate term of 25 years to life in
2
prison for his crimes.
PROCEDURAL HISTORY
In 2010, this court affirmed the judgment against petitioner on direct
appeal. (People v. Khalifa (Apr. 7, 2010, G040331) [nonpub. opn.].) Based on
petitioner’s involvement in the burglary and his continued cooperation with Rivera and
Pena after the attack on Love, we determined the jury could reasonably conclude he was
a major participant in the underlying felonies and acted with reckless indifference to
human life so as to support the true finding on the special circumstance allegations. (Id.
at p. 10.)
After the California Supreme Court denied review, petitioner sought habeas
relief in federal court. In denying relief, the district court determined there was sufficient
evidence to support petitioner’s conviction for felony murder because the evidence linked
him to the underlying felonies, and Love’s death was connected to those crimes. (Khalifa
v. Cash (C.D.Cal. 2012) 2012 U.S. Dist. LEXIS 73410, adopting the recommendations
made by the magistrate in Khalifa v. Cash (C.D.Cal. 2012) 2012 U.S. Dist. LEXIS

2
The statutorily prescribed punishment for special circumstances murder is death or life in prison
without the possibility of parole. (§ 190.2, subd. (a).) But because petitioner was only 15 years old when Love was
murdered, he was given 25 years to life, the standard sentence for first degree murder. (§ 190, subd. (a).) In
contrast, Rivera, who was 16 years old at the time in question and was convicted of murdering both Love and Pena
under special circumstances, received a sentence of life without parole, underscoring petitioner’s lesser role in the
incident.

4
73417.) But because petitioner did not raise the issue, the court did not consider the
sufficiency of the evidence with respect to the special circumstance allegations, i.e.,
whether petitioner was a major participant in the felonies and acted with reckless
indifference to human life. Nor did the Ninth Circuit Court of Appeals when it affirmed
the denial of petitioner’s habeas petition. (Khalifa v. Cash (9th Cir. 2014) 594 Fed.Appx.
339.)
Petitioner’s request for a writ of certiorari was denied by the United States
Supreme Court on May 4, 2015. (Khalifa v. Soto (2015) 135 S.Ct. 2055.) Three years
later, the Governor commuted petitioner’s sentence to 15 years to life in prison due, inter
alia, to petitioner’s “limited role” in the events leading to Love’s murder, which the
Governor described as “entering [Love’s] house and stealing candy.” The Governor
found it particularly significant petitioner “did not participate in the beating that resulted
in [] Love’s death and there is no indication that he anticipated his crime partners would
injure and kill [] Love.”
On January 2, 2019, petitioner filed a petition for writ of habeas corpus in
this court claiming there was insufficient evidence to support the jury’s finding on the
special circumstance allegations. In so doing, petitioner acknowledged we had already
rejected that claim on direct appeal. But he argued the issue deserved reconsideration in
light of two California Supreme Court cases – People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) – that were not decided until
after his state and federal remedies were already exhausted. As explained more fully
below, those two decisions “clarified ‘what it means for an aiding and abetting defendant
to be a “major participant” who acted with a “reckless indifference to human life[]”’” for
purposes of the felony murder special circumstance. (In re Taylor (2019) 34 Cal.App.5th
543, 546, quoting In re Miller (2017) 14 Cal.App.5th 960, 964.)
We summarily denied petitioner’s habeas petition, prompting him to seek
review in the California Supreme Court. In opposing review, the Attorney General,

5
respondent herein, argued the petition was procedurally barred because it raised an issue
previously decided on appeal, involved a sufficiency-of-the-evidence claim, and was
untimely. The Attorney General also argued there was sufficient evidence to support the
jury’s determination petitioner acted with reckless indifference to Love’s life and was a
major participant in the felonies that led to his death. However, the Supreme Court
granted review and transferred the case to us with directions to vacate our previous order
and order respondent to show cause why petitioner was not entitled to relief under Banks
and Clark. We followed those directions and appointed counsel for petitioner. Having
received formal briefing from the parties, we now consider petitioner’s entitlement to
3
relief.
DISCUSSION
Procedural Hurdles
The Attorney General renews the procedural arguments he presented in
opposing petitioner’s petition for review in the California Supreme Court. However, by
granting the petition, the Supreme Court signified it has considered those arguments and
determined petitioner’s claim is not procedurally barred. (In re Robbins (1998) 18
Cal.4th 770, 814, fn. 34; In re Taylor, supra, 34 Cal.App.5th at p. 554; In re Ramirez
(2019) 32 Cal.App.5th 384, 406, fn. 11.)

3
The timing of petitioner’s habeas petition makes clear his ultimate objective is not just to have the
felony murder special circumstances findings overturned, but to have his underlying conviction for felony murder
vacated. As noted above, he filed his petition on January 2, 2019, which was the day after Senate Bill No. 1437
became effective. (See Stats. 2018, ch. 1015.) Under Senate Bill No. 1437, nonkillers who lacked the intent to kill
cannot be convicted of felony murder unless they were “a major participant in the underlying felony and acted with
reckless indifference to human life[.]” (§ 189, subd. (e)(3).) Alas, the standard for felony murder and the standard
for the felony murder special circumstance are now one and the same. (In re Taylor, supra, 34 Cal.App.5th at pp.
561-562.) Senate Bill No. 1437 also permits a defendant who was convicted of felony murder to have his conviction
vacated if that standard was not met at his trial. (Ibid.) However, such relief can only be obtained by filing a
petition in the trial court. (Ibid.) Therefore, we offer no opinion on petitioner’s entitlement to such relief; our sole
concern in this proceeding is the propriety of the jury’s true finding on the felony murder special circumstance
allegations. (Ibid.)

6
 Moreover, to the extent the evidence is insufficient to show petitioner was a
major participant who acted with reckless indifference to human life, federal due process
would “require reversal of the special circumstances finding in this case regardless of the
Attorney General’s California-law-based procedural arguments.” (In re Miller, supra, 14
Cal.App.5th at p. 977.) We therefore turn to that issue.
Sufficiency of the Evidence
Petitioner was convicted of special circumstances murder under section
190.2, subdivision (d). That provision applies when the victim is killed in the course of a
serious felony such as robbery or burglary, even if the defendant was not the actual killer
and lacked the intent to kill. However, in that situation, the prosecution must prove two
special elements: 1) the defendant was a “major participant” in the underlying felony,
and 2) he acted with “reckless indifference to human life[.]” (§ 190.2, subd. (d).)
Appellant contends there is insufficient evidence to support those elements, and we agree.
Although the standard of review on a sufficiency-of-the-evidence claim is deferential (see
In re Bennett (2018) 26 Cal.App.5th 1002, 1018 [affirmance is required if the evidence
supporting the verdict is of reasonable, solid and credible value when viewed in the light
most favorable to the prosecution]), we find the jury’s true finding on the felony murder
special circumstance allegations bereft of substantial evidentiary support.
The major participant and reckless indifference requirements stem from a
pair of United States Supreme Court cases, Enmund v. Florida (1982) 458 U.S. 782
(Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison). In those decisions, the high
court considered under what circumstances the death penalty could be imposed on a
person “who aids and abets a felony in the course of which a murder is committed by
others but who does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force be employed.” (Enmund, supra, 458 U.S. at p. 797.)
Earl Enmund was just such a person. After hatching a robbery plot, he
drove his cohorts to the victim’s house and waited nearby while they confronted the

7
victim at gunpoint. When the victim’s wife appeared with a gun of her own, the cohorts
shot and killed her, as well as the intended victim. Enmund then drove his cohorts from
the scene and helped them get rid of their guns. Focusing solely on Enmund’s conduct
and culpability, the United States Supreme Court determined that because he played a
minor role in the actual robbery and lacked the intent to kill, he could not be subjected to
the death penalty, even though the victims were murdered during the course of a serious
felony – armed robbery – that he planned and facilitated. (Enmund, supra, 458 U.S. at
pp. 798-801.)
In Tison, the defendants’ conduct was more egregious, although, like
Enmund, they too harbored no murderous intent. The defendants in Tison were two
brothers who sprang their father Gary and another convicted murderer, Randy, from
prison during an armed confrontation with guards. Following the breakout, the group
flagged down a car, captured its occupants at gunpoint and took their belongings. Then
Gary and Randy shot and killed them while the defendants looked on from a distance.
The group evaded authorities for several days but was eventually apprehended after a
shootout with the police. The question presented was whether the defendants – nonkillers
who lacked the intent to kill but were heavily involved in the armed breakout and
kidnapping for robbery – could lawfully be put to death for the murders committed by
Randy and their father.
The high court answered that question in the affirmative, explaining the
defendants’ “own personal involvement in the crimes was not minor, but rather, as
specifically found by the trial court, ‘substantial.’ Far from merely sitting in a car away
from the actual scene of the murders acting as the getaway driver to a robbery [a la
Enmund], each [defendant] was actively involved in every element of the kidnaping-
robbery and was physically present during the entire sequence of criminal activity
culminating in the murder of the [victims] and the subsequent flight.” (Tison, supra, 481
U.S. at p. 158.) Equally important, the facts demonstrated the defendants “subjectively

8
appreciated that their acts were likely to result in the taking of innocent life.” (Id. at p.
152.) The court found their “reckless indifference to the value of human life [was] every
bit as shocking to the moral sense as an ‘intent to kill.’” (Id. at p. 157.)
In the wake of Tison, the California electorate passed Proposition 115,
which amended section 190.2 to allow the felony murder special circumstance to be
applied to a person who was not the actual killer so long as he acted “with reckless
indifference to human life and as a major participant” in the underlying felony. (§ 190.2,
subd. (d).) That amendment, which amounted to a statutory codification of the Tison
decision, was already on the books when we decided petitioner’s direct appeal in 2010.
However, it wasn’t until several years later, in Banks and Clark, that the California
Supreme Court fully examined the meaning of the terms “major participant” and
“reckless indifference” in order to provide “a deeper understanding” of how they should
be applied in a given case. (Banks, supra, 61 Cal.4th at p. 801.)
The facts in Banks were akin to those in Enmund in that the defendant
served as the getaway driver for an armed robbery in which his confederate shot and
killed a person who resisted the robbery. In examining the parameters of the major
participation requirement, the Banks court explained, “Tison and Enmund establish that a
defendant’s personal involvement must be substantial, greater than the actions of an
ordinary aider and abettor to an ordinary felony murder such as Earl Enmund. The
defendants’ actions in Tison [] and Enmund [] represent points on a continuum.
[Citation.] Somewhere between them, at conduct less egregious than the Tisons’ but
more culpable than Earl Enmund’s, lies the constitutional minimum for death eligibility.”
(Banks, supra, 61 Cal.4th at p. 802.)
The Banks court then articulated several factors bearing on the major
participation requirement: “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

9
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?”
(Banks, supra, 61 Cal.4th at p. 803.) The court stated, “No one of these considerations is
necessary, nor is any one of them necessarily sufficient. All may be weighed in
determining the ultimate question, whether the defendant’s participation . . . was
sufficiently significant to be considered ‘major’ [citations].” (Ibid.)
Applying these factors to the defendant’s actions in Banks, the Supreme
Court found his conduct failed to satisfy the major participant requirement because he
was not involved in planning the robbery, he did not procure weapons for the shooter,
neither he nor the other participants had any history of violent crime, he was not present
at the scene of the shooting, and 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.” (Banks, supra, 61 Cal.4th at p. 805.)
The Banks court also addressed the mens rea requirement for the felony
murder special circumstance. While acknowledging there is an inherent risk of death in
all armed robberies, the court stated that risk alone is not enough to support a finding of
reckless indifference. Rather, the evidence must establish the defendant engaged in
conduct that is “‘“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, italics added.) The
Supreme Court found that standard was not met in Banks because, unlike the situation in
Tison, there was no evidence the defendant “knowingly conspired with accomplices
known to have killed before. Instead, as in Enmund, [the fatal shooting] was apparently a
spontaneous response to armed resistance from the victim.” (Id. at p. 807.)

10
 In Clark, the Supreme Court further elaborated on the reckless indifference
requirement. Clark planned and organized the closing-time robbery of an Orange County
computer store and was orchestrating events from his car in the parking lot when the
mother of one of the victims unexpectedly entered the store. An accomplice in the store
promptly shot her dead, leading to Clark’s conviction for special circumstances felony
murder under aiding and abetting principals. Without deciding whether Clark was a
major participant in the underlying robbery, the Supreme Court noted there is significant
overlap between the major participant requirement and the reckless indifference
requirement, “‘for the greater the defendant’s participation in the felony murder, the more
likely that he acted with reckless indifference to human life.’ [Citation.]” (Clark, supra,
63 Cal.4th at p. 615.)
This overlap was further elucidated when the court announced the factors it
considered pertinent to the reckless indifference analysis, namely, “the defendant’s
knowledge of weapons, and the use and number of weapons; the defendant’s proximity to
the crime and opportunity to stop the killing or aid the victim; the duration of the offense
conduct, that is, ‘whether a murder came at the end of a prolonged period of restraint of
the victims by defendant’; the defendant’s awareness his or her confederate was likely to
kill; and the defendant’s efforts to minimize the possibility of violence during the crime.”
(In re Miller, supra, 14 Cal.App.5th at p. 973, quoting Clark, supra, 63 Cal.4th at pp.
618-623.) As it did in enunciating the major participant factors in Banks, the Supreme
Court in Clark made it clear that none of these factors was necessary, or necessarily
sufficient, to satisfy the reckless indifference requirement in a given case. (Clark, supra,
63 Cal.4th at p. 618.)
However, on balance, the Supreme Court felt those factors militated against
a finding Clark acted with reckless indifference in his case. As to that issue, the court
found it significant the sole gun used in the robbery held a single bullet and was carried
by an accomplice, not Clark. (Clark, supra, 63 Cal.4th at p. 619.) In addition, although

11
Clark was nearby at the time of the shooting, he was not physically present at the scene,
rendering him unable to prevent it. (Ibid.) Furthermore, there was no evidence Clark
ordered the shooting or wanted it to occur. (Id. at pp. 619-621.) In fact, the evidence
suggested just the opposite in that Clark planned the robbery to take place after the store
was closed, and he thought the gun was unloaded. (Ibid.) The Supreme Court
determined those circumstances warranted reversal of the special circumstance findings
because, at bottom, there was nothing about the planning and nature of the robbery “that
elevated the risk to human life beyond those risks inherent in any armed robbery.” (Id. at
p. 623.)
The same can be said about the robbery that led to Love’s murder in this
case. In analyzing the major participant and reckless indifference requirements here, it is
useful to point out how the prosecutor characterized the dynamics of petitioner’s group
on the night of Love’s murder. In his closing argument, the prosecutor asserted the group
was like a pack of wolves, and its leader was Rivera, whom he described as the pack’s
“alpha wolf.” Second in authority, according to the prosecutor, was Pena. (See fn. 2,
ante.) Petitioner and Gardner rounded out the group. Given that Gardner did not enter
Love’s house and was, at most, a lookout during the robbery, the prosecutor characterized
him as the least culpable member of the group. Then there was petitioner, whom the
prosecutor described as a “follower.” The prosecutor theorized petitioner went along
with the robbery plan not because he had any particular desire to steal from people in his
neighborhood but because he wanted to look tough to his peers and ingratiate himself to
the group’s kingpin, Rivera.
According to Gardner, Rivera was the one who came up with the idea of
robbing Love in the first place. Apparently, everyone in the group discussed that
prospect once Rivera brought it up, but there was no specific plan as to how they were
going to carry out the robbery; Rivera and Pena just started walking toward Love’s
house, and petitioner and Gardner followed in their wake. There is no evidence that

12
petitioner played a significant role in planning the robbery or that there was any
suggestion deadly force would be needed to accomplish their goal of robbing the elderly
Love and burglarizing his home.
Nor was there any evidence that anyone in the group had a propensity for
violence or a history of committing violent crimes. The Attorney General does not
dispute this, but he contends the robbery had a heightened potential for causing death
because Rivera was armed with a gun. He also contends petitioner was aware that Rivera
had a gun during the incident. However, these contentions are largely speculative; they
do not enjoy substantial evidentiary support.
During his interview with the police, Gardner did tell detectives that Rivera
showed everyone in their group a .38 caliber pistol while they were hanging out at
petitioner’s house on the night of the robbery. But later in the interview, Gardner
clarified that statement by explaining that Rivera actually showed them the gun the day
before the robbery, while they were playing video games with petitioner’s sister.
Likewise at trial, Gardner initially testified that Rivera revealed a .38 to the
group “on or near” the night of the robbery. However, in response to further questioning,
Gardner said he was sure Rivera did not reveal the gun on that night, but rather “within a
couple of days to a week” of that time. He had no memory of seeing anyone in his group
with a gun on the night they robbed Love.
On this record, it is hardly surprising the prosecutor ignored the gun issue
altogether in his closing argument. At no point did he claim anyone in petitioner’s group
possessed, mentioned or used a gun in connection with the planning or execution of the
robbery at Love’s house. Nor is the gun issue mentioned in our prior opinion or any of
the federal court decisions that have reviewed petitioner’s case. (See cases cited ante, at
pp. 4-5.) This omission confirms our conclusion that although Rivera revealed a gun at
some point before the robbery, this is not a material fact in terms of assessing petitioner’s
culpability for Love’s murder.

13
 In any event, our Supreme Court has made it clear that while the presence
of firearms is a factor bearing on the applicability of the felony murder special
circumstance, it is insufficient per se to support a finding of reckless indifference.
(Clark, supra, 63 Cal.4th at p. 617; Banks, supra, 61 Cal.4th at p. 809.) So even if Rivera
was armed during the crimes at Love’s residence, and petitioner knew he had a gun, it
would not change our conclusion about petitioner’s culpability, especially in the absence
of any evidence that Rivera actually used a firearm in carrying out those crimes. (See
generally Clark, supra, 63 Cal.4th at pp. 613, 618-619, 623 [overturning felony murder
special circumstance finding even though the defendant was aware of gun used in
robbery]; Banks, supra, 61 Cal.4th at p. 805 [same]; In re Ramirez, supra, 32 Cal.App.5th
at pp. 404-406 [same]; In re Taylor, supra, 34 Cal.App.5th at pp. 557-561 [same]; In re
Bennett, supra, 26 Cal.App.5th at pp. 1026-1027 [same].)
The Attorney General argues petitioner “also demonstrated reckless
indifference in that he agreed to go to an elderly man’s home to commit the robbery. He
willingly took advantage of the fact [Love] would be particularly vulnerable.” It is true
that Love was 77 years old at the time of his death. However, there was no evidence he
was in poor health or “particularly vulnerable.” To the contrary, the evidence indicated
he was an independent senior who had an affinity for firearms. If anything, his age
would have suggested violence would not be necessary – much less deadly force.
As for petitioner’s role in the robbery/burglary that occurred at Love’s
house, the Attorney General notes petitioner told Gardner to stay on the side of the house
while he went around to the back of the house. According to the Attorney General, this
shows petitioner took a small leadership role in the underlying felonies. The Attorney
General also notes petitioner eventually entered Love’s house and rummaged through his
kitchen looking for things to steal. The Attorney General argues this is proof of
petitioner’s “active participation” in the underlying burglary.

14
 We agree with the Attorney General on these points. However, the test for
the actus reus element of the felony murder special circumstance is “major” participation,
not simply “active” participation. Petitioner’s actions were no more involved than the
standard run-of-the-mill house burglar; they were taken in a different room, had no
impact on what went on there, and in no way made Love’s death more likely. Applying
the modifier “major” to a theft of chocolates in an adjoining room is a bridge too far for
us.
Nevertheless, the Attorney General faults petitioner for failing to stop the
attack on Love once Rivera and Pena started beating him. The Attorney General sees this
as a legitimate basis to infer petitioner was recklessly indifferent to Love’s life. The
problem with this argument is that it assumes petitioner knew about the attack and had a
realistic opportunity to intervene on Love’s behalf. But Gardner testified Rivera and
Pena entered Love’s house about 10 minutes before petitioner went inside. There is no
credible evidence petitioner was in the house when the attack on Love occurred.
In arguing otherwise, the Attorney General relies on the fact Gardner heard
the sound of metal hitting metal while petitioner was inside Love’s kitchen. The
Attorney General suggests this sound was somehow related to the attack on Love, and
therefore it provided petitioner with reason to believe Love was in danger. This is
grasping at straws. Gardner testified the metal sound he heard was from petitioner
rummaging through Love’s silverware drawer. He did not link the sound to the attack on
Love.
The Attorney General also notes Gardner testified that, the day after the
murder, petitioner told him that Rivera and Pena beat Love to death. The Attorney
General sees this as proof petitioner witnessed the beating himself or at least saw its
gruesome aftermath. But, according to Gardner, petitioner said Rivera was the one who
told him about the beating, which supports the opposite conclusion. More straws.

15
 Even if petitioner was in the house when Love was attacked and knew what
was going on, it is doubtful he would have been able to do anything about it, given his
standing in the group. Whereas Rivera and Pena were the “top dogs” in the outfit,
petitioner was simply a “follower” who was trying to put on a tough face for his older
companions. At least that is how the prosecutor characterized things. Also, petitioner
was outnumbered by Rivera and Pena, who were clearly bent on inflicting maximum
harm to Love. The circumstances of the situation did not really lend themselves to
meaningful intervention by petitioner.
Still, the fact remains that petitioner was present at the scene of the murder
at some point. Although we don’t know exactly what, if anything, he saw or heard with
respect with to the actual killing, it is reasonable to presume he knew Love was in peril.
4
After all, he admitted to his mother that he heard Love moan.
It was certainly callous of petitioner not to try to help Love after hearing
him moan. By failing to render aid, and fleeing the area instead, petitioner obviously put
his own interests above that of the victim. But callousness is not the same as reckless
indifference to human life. Whereas callousness reflects insensitivity and lack of
compassion, reckless indifference is only established when the defendant knowingly
creates a serious risk of death. (In re Taylor, supra, 34 Cal.App.5th at p. 560.)
Based on petitioner’s actions before, during and after Love’s murder, we do
not believe his conduct satisfies this requirement, or the major participant requirement, of
the felony murder special circumstance. Indeed, assessing petitioner’s conduct on the
Enmund-Tison continuum, it is apparent his culpability is much closer to Earl Enmund
than the Tison brothers. Like the Tison brothers, petitioner was nearby when his

4
Based on the bloody footprints that were found leading from the living room to the rear sliding
glass door of Love’s house, the Attorney General posits petitioner not only heard Love moan, he walked over and
saw his bloody body as well. However, the source of the footprints was never revealed at trial, and as the prosecutor
recognized in closing argument, they could very well have come from Rivera or Pena letting petitioner inside the
house after the murder.

16
confederates committed murder, and rather than trying to assist the victim, he left the
scene and joined up with his cohorts after the killing. However, unlike the Tison
brothers, petitioner had no reason to know his codefendants were going to commit
murder, and, like Enmund, his particular role in the underlying felonies was minor. His
actions did not rise above those of an ordinary aider and abettor, nor did they create a
grave or significant risk of death.
For all of these reasons, we conclude there is insufficient evidence to
support the jury’s finding on the special circumstance allegations. Even considered in the
light most favorable to the prosecution, the record does not contain substantial evidence
petitioner was a major participant in the criminal enterprise that led to Love’s death or
that he acted with reckless indifference to Love’s life. The true finding on the special
circumstance allegations cannot stand.
DISPOSITION
Petitioner’s petition for a writ of habeas corpus is granted, and the jury’s
true finding on the special circumstance allegations is reversed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

GOETHALS, J.

17