In re Taylor

• Decision Date: 19 April 2019
• Docket Number: A155328
• Citation: 34 Cal.App.5th 543,246 Cal.Rptr.3d 342
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Anthony TAYLOR, on Habeas Corpus.

34 Cal.App.5th 543

246 Cal.Rptr.3d 342

IN RE Anthony TAYLOR, on Habeas Corpus.

A155328

Court of Appeal, First District, Division 1, California.

Filed April 19, 2019

Counsel for Petitioner: Philip M. Brooks, under appointment by the Court of Appeal.

Counsel for Respondent: Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, René A. Chacón, Deputy Attorney General.

Humes, P.J.Petitioner Anthony Taylor participated in an attempted robbery at a Livermore liquor store during which one of his accomplices shot to death a store employee, 70-year-old Kathryn Cary. In 1994, a jury convicted Taylor of first degree felony murder and found that the killing occurred in the commission of an attempted robbery that he aided and abetted "as a major participant" and "with reckless indifference to human life," a special circumstance requiring a sentence of life in prison without the possibility of parole under Penal Code section 190.2, subdivision (d) ( section 190.2(d) ).¹

In 2018, Taylor filed the instant petition for a writ of habeas corpus seeking to have the special circumstance vacated under People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( Clark ), which clarified "what it means for an aiding and abetting defendant to be a ‘major participant’ who acted with a ‘reckless indifference to human life.’ " ( In re Miller (2017) 14 Cal.App.5th 960, 964, 222 Cal.Rptr.3d 691 ( Miller ).) Under this authority, a defendant acts with a reckless indifference to human life when he or she "knowingly creat[es] a ‘grave risk of death.’ " ( Banks , at p. 808, 189 Cal.Rptr.3d 208, 351 P.3d 330.) We hold that evidence of a defendant’s actions after a murder betraying an indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death. Because there is no other evidence that Taylor had such an intent when he participated in the attempted robbery, we grant his petition to vacate the special circumstance.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts about the murder are taken from this court’s unpublished opinion in Taylor’s direct appeal, People v. Davis (Mar. 14, 1996, A065553).

"On the night of May 15, 1991, 70-year-old Kathryn Cary was shot and killed as she was making a night deposit of the receipts of the liquor store where she was employed. There was evidence that Marzett Davis, Anthony Taylor, Tyree Shackelfoot[,] and Theodore Lawless had planned to rob the store’s receipts, and that Davis attempted the robbery and shot Cary while the other men waited in a car driven by Taylor. ...

"At least one week before the crimes, Taylor and Shackelfoot were in the parking lot of Ernie’s Liquor Store watching Ernie, an employee, walk with the store’s receipts to a nearby bank. They discussed the fact that Ernie’s did not seem to be taking any precautions to prevent theft of the receipts. On May 14, Taylor drove to Shackelfoot’s house. Davis, with Lawless in the car, drove by. Taylor flagged Davis to follow him. They then drove to Ernie’s. Davis joined Taylor and Shackelfoot in their car, where they told him about the lack of security at the liquor store. They planned a robbery, deciding where they would park the car, where the person who was to take the money would stand, and how they could get away after the robbery. They at first planned to commit the robbery over the weekend, but when they realized that the liquor store’s take for May 15 would be swollen by Lotto receipts, they decided to commit the offense on that date. The plan was that Davis would grab the sack of receipts as a store employee was depositing it in a bank night[-]deposit box. He would then run to the car where the others were waiting, and they would make their escape. On the night of May 15 the men met at Taylor’s apartment. Everyone but Davis got into Taylor’s car. Davis went to his own car, opened the hood[,] and took out a gun, which he put in his waistband. He then got into Taylor’s car. Davis was dressed all in black. With Taylor driving, they drove to Ernie’s, parking on the street as planned. Davis got out of the car and moved to the corner of the bank building. After a[ ]while Davis returned to the car, saying they must have missed the deposit. Taylor told him to wait a little longer, and Davis returned to his post. About five or ten minutes later the men in the car saw Davis run in the direction of the bank. The others’ view of the robbery was blocked by a corner of the building, but they heard gunshots, and heard a woman say, ‘[Y]ou shot me.’ Davis ran back to the car but Taylor, noticing that a tan car or van had appeared, told Davis to keep going. The tan car attempted to follow Davis, but he jumped through some bushes and disappeared. The tan car went back to the parking lot where the victim lay. Taylor then started his car and picked up Davis. The man who drove the tan car testified that he noticed a man and a woman fighting over something. He heard three shots and saw a flash after which the woman dropped to the ground. The man ran away and the witness attempted to follow. When he was unable to do so he returned, finding the woman lying in a pool of blood. The victim was Kathryn Cary, an employee of Ernie’s [L]iquors. She died approximately one-half hour later. The store’s deposits were in a bag that was discovered in the open night[-]deposit drawer. On the following day, Shackelfoot asked Taylor what they should do. Taylor responded, ‘Fuck that old bitch,’ telling Shackelfoot to keep quiet about the incident because they would be just as guilty as Davis. Davis testified [on] his own behalf. He admitted that he and Taylor planned an armed robbery, and that he had armed himself with a .380 on the night in question. Before he was able to commit the robbery, however, he heard voices and saw a man and a woman struggling. He saw the man swing at the woman, after which he heard two shots, and ran away."

The jury found Taylor guilty of first degree murder as an aider and abettor of Davis in the attempted robbery and found true the allegation that Taylor or a principal was armed during the offense and aided and abetted the robbery as a major participant and with reckless indifference to human life. The jury also convicted Taylor of attempted robbery and found true that he or a principal was armed during the offense.² He was sentenced to life without the possibility of parole for the murder, plus a one-year term for the arming enhancement, and an 18-month sentence for the attempted robbery was imposed and stayed.

Taylor appealed, and this division affirmed the judgment in its 1996 unpublished opinion. Among other claims, he argued that insufficient evidence supported the special circumstance. The opinion rejected the claim as follows:

"Taylor argues that he was not a ‘major participant’ because he was not present at the time of the killing, was unarmed, and was assigned the role of driving the getaway car. Taylor erroneously focuses on the question of whether he was a major participant in the killing . The correct focus is whether he was a major participant in the underlying felony ; i.e., here, the robbery. Although Taylor likes to paint himself as little more than a bystander who sat quietly in the car with no idea of what Davis was doing, there was significant evidence that Taylor conceived of the idea of committing the robbery, planned it, and solicited Davis to participate in it. It also appeared that Taylor was the decision-maker. Thus, when Davis returned to the car on the assumption that the receipts already had been deposited, Taylor directed him to return to the selected place. In addition, after the crime, Taylor wouldn’t let Davis back in the car, telling him to keep going and picking him up only later. The evidence therefore discloses that Taylor was a major participant in the robbery.

"Taylor also argues that the evidence does not support the argument that he acted with reckless indifference to human life. The court in Tison v. Arizona (1987) 481 U.S. 137 [107 S.Ct. 1676, 95 L.Ed.2d 127] [ ( Tison ) ] ... described the requisite mental state as follows: ‘the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’ [Citation.] The court in the recent case of People v. Estrada (1995) 11 Cal.4th 568 [46 Cal.Rptr.2d 586, 904 P.2d 1197] explained that the phrase ‘ "reckless indifference to human life" ’ means that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. [Citation.] Here, there was evidence that Taylor planned the crime, and in order to implement it recruited Davis, a man he knew to have a fondness for weapons. A reasonable inference is that Taylor selected Davis in part because he expected that violence might be necessary. After the violence did in fact occur, Taylor, who, as the driver and the person in charge could have come to the victim’s aid, simply drove off, later stating[,] ‘Fuck that old bitch.’ The evidence, accordingly, supports a finding that Taylor had a subjective appreciation that his participation in the crime involved a grave risk of death and that he was not just recklessly indifferent to that risk, but callously indifferent. The findings that both prongs of the special circumstances allegation were present, therefore, were supported by the evidence."

Ten years later, in July 2016, Taylor filed a petition for a writ of habeas corpus in the superior court, claiming that the special circumstance could not stand under the Supreme Court’s 2015 decision in Banks . After the superior court denied the petition, Taylor petitioned for habeas relief in this court, again relying on Banks . We...