People v. Banks

• Decision Date: 09 July 2015
• Docket Number: No. S213819.,S213819.
• Citation: 61 Cal.4th 788,351 P.3d 330,189 Cal.Rptr.3d 208
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leon BANKS et al., Defendants and Appellants.
• Court: California Supreme Court

61 Cal.4th 788

351 P.3d 330

189 Cal.Rptr.3d 208

The PEOPLE, Plaintiff and Respondent,

v.Leon BANKS et al., Defendants and Appellants.

No. S213819.

Supreme Court of California

July 9, 2015.

Sharon M. Jones, Ventura, under appointment by the Supreme Court, for Defendant and Appellant Leon Banks.

Danalynn Pritz, Westlake Village, under appointment by the Supreme Court, for Defendant and Appellant Lovie Troy Matthews.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Marc A. Kohm, Peggy Z. Huang, Keith H. Borjon and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

In 1990, the voters passed Proposition 115, which adopted a wide range of criminal justice reforms, including extending death penalty eligibility to "major participant[s]" in felony murders. ( Pen.Code, § 190.2, subd. (d)¹ ( section 190.2(d) ), added by initiative, Primary Elec. (June 5, 1990) Prop. 115, § 10; see Raven v. Deukmejian (1990) 52 Cal.3d 336, 342–345, 276 Cal.Rptr. 326, 801 P.2d 1077.) The issue before us is under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty.

Section 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127, 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, 102 S.Ct. 3368, 73 L.Ed.2d 1140, collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions. Section 190.2(d) must be accorded the same meaning.

Here, defendant Lovie Troy Matthews acted as the getaway driver for an armed robbery in which Leon Banks and others participated. In the course of escaping, Banks shot one of the robbery victims. A jury found Matthews guilty of first degree murder under a felony-murder theory and found true a felony-murder special circumstance. The People did not seek the death penalty; consequently, Matthews received the mandatory lesser sentence for special circumstance murder, life imprisonment without parole. ( § 190.2, subd. (a).) Section 190.2(d) must be given the same interpretation irrespective of whether the defendant is subsequently sentenced to death or life imprisonment without parole. Because the record establishes Matthews was no more culpable than the getaway driver in Enmund v. Florida, supra, 458 U.S. 782, 102 S.Ct. 3368, the evidence was insufficient as a matter of law to support the special circumstance, and Matthews is statutorily ineligible for life imprisonment without parole. We reverse the Court of Appeal's contrary decision and remand for resentencing.

PROCEDURAL AND FACTUAL BACKGROUND

Matthews's culpability for first degree felony murder is not in dispute. We address only those facts relevant to the narrow issue on which we granted review, whether Matthews can be found guilty of special circumstance murder and sentenced to life imprisonment without parole. We recite the evidence in the light most favorable to the jury's verdict. ( People v. Jackson (2014) 58 Cal.4th 724, 749, 168 Cal.Rptr.3d 635, 319 P.3d 925.)

The La Brea Collective is a Los Angeles medical marijuana dispensary. At its 2008 location, the dispensary had a metal security door providing access from the sidewalk and behind that door a sally port and second lockable door leading into the lobby. Patients who rang the front doorbell were required to pass identification and a physician's medical marijuana recommendation through a slot in the door to a security guard, Noe Gonzalez, stationed in the sally port. Once the papers were verified, patients would be escorted through the sally port and second locked door into the dispensary lobby. Surveillance cameras monitored the premises.

On the afternoon of October 1, 2008, an employee looked at the camera monitor and saw Gonzalez being escorted into the lobby by two men armed with guns. The two men and a third accomplice, later identified as Leon Banks, David Gardiner, and Brandon Daniels, began tying up employees and searching the premises. One of them asked an employee, "Where's the stuff at?" When shots were fired, the three stopped and fled. An employee watched on the monitor as the three reached the front door and struggled to exit. Banks returned to the lobby and fired a shot out the front window. After additional shots were fired, the three were able to escape.

A witness across the street saw Gonzalez trying to push the front door closed from the outside. The witness saw Banks reach his hand around the door from the inside and shoot Gonzalez. As Gonzalez fell, Banks stepped out and shot him again. Banks, Gardiner, and Daniels fled on foot.

A driver passing the dispensary at approximately 3:45 p.m. heard popping sounds and saw Banks and Gonzalez struggling at the dispensary's front door. Both had guns and were reaching around the door and shooting at each other. When the driver pulled over and looked back, he saw Gonzalez lying on the sidewalk.

On a residential street one block from the dispensary, a man was standing on the sidewalk in front of his house when Daniels ran by and asked to use his bathroom. The man refused, causing Daniels to pause. An SUV with paper license plates reading "Power" came around the corner, and Daniels screamed "Troy, Troy" (Matthews's middle name). The SUV slowed without completely stopping. Daniels jumped in, another man later identified as Gardiner came across the street and jumped in as well, and Matthews drove off.

Police responding to the scene found Gonzalez dead on the sidewalk, a revolver with his DNA on it on the ground near his outstretched arm.² The revolver contained two live rounds and three spent rounds. Within minutes, Banks was captured on foot near the dispensary. Later that afternoon, an SUV with paper Power plates was stopped a few blocks from the dispensary; Matthews, the driver and sole occupant, was arrested. The SUV was registered to Banks and another person, and clothing belonging to Banks was found inside. In a field show-up, witnesses identified Banks as the shooter. Over the next few days, police found at or near the dispensary a photocopy of a doctor's medical marijuana recommendation and Banks's driver's license, zip ties, gloves, a holster, and a semiautomatic handgun. DNA, fingerprint, and palm print testing tied Banks, Daniels, and Gardiner to the dispensary, gloves, zip ties, and doctor's statement, but excluded Matthews. Ballistics tests confirmed the semiautomatic handgun was the murder weapon.

Cellphones were recovered from Banks and Matthews. Call records showed Matthews called Banks six times during the afternoon of October 1. Each call lasted between 20 and 50 seconds; the calls came at 2:53, 3:46, 3:49, 3:51, 3:53, and 3:56 p.m. It was not possible to determine whether the two spoke or these calls went to voicemail. Banks called Matthews three times, at 1:49, 3:44, and 3:58 p.m., with each call lasting approximately 20 seconds; these calls were answered.

Matthews was wearing a global positioning system (GPS) tracking device that showed his movements to within 15 meters. An expert testified Matthews was on the block containing the dispensary at 2:51 p.m., then three blocks away at 3:00 p.m., where he remained for approximately 45 minutes. At 3:46 p.m., Matthews moved toward the dispensary and made a series of stops within a few blocks of it over the next few minutes.

A gang expert testified Matthews, Gardiner, and Daniels were members of the same criminal street gang. The gang's primary activities were described generally as narcotics sales, burglaries, robberies, shootings, attempted murders, murders, and gun possession. No evidence was presented that Matthews, Gardiner, or Daniels had killed before, or that Matthews knew any of the three had killed before. The expert testified Banks was not a member of the gang.

Banks and Matthews were tried together. Matthews did not present any evidence on his own behalf but argued the prosecution had failed to carry its burden of proof.

A jury convicted Matthews of first degree murder and found true the special circumstance that the murder was committed during an attempted robbery or burglary. ( §§ 187, subd. (a), 190.2, subd. (a)(17).) He was also convicted of burglary and attempted robbery with gang and firearm enhancements. (§§ 186.22, subd. (b)(1), 211, 459, 664, former 12022.53, subds. (d), (e).) Because the prosecution did not seek the death penalty, Matthews was sentenced to life imprisonment without parole.

On appeal, the Court of Appeal rejected Matthews's challenge to the sufficiency of the evidence supporting the special-circumstance true finding. It held his actions as a getaway driver in supporting the underlying robbery, with knowledge death was always a possibility in an armed robbery, were legally sufficient under section 190.2(d). Given the significance of section 190.2(d) in determining which felony murderers are eligible for either life imprisonment without parole and death, or a lesser sentence, we granted review to address its proper construction.

DISCUSSION

I. The Felony-murder Aider and Abettor Special Circumstance

The federal Constitution's Eighth Amendment does not prohibit the death penalty, but it does require that states offer guidance to sentencing bodies tasked with differentiating those for whom death is appropriate from those for whom it is not.

( Gregg v. Georgia (1976) 428 U.S. 153, 187–189, 96 S.Ct. 2909, 49 L.Ed.2d 859 ; People v. Crittenden (1994) 9 Cal.4th 83, 154, 36 Cal.Rptr.2d 474, 885 P.2d 887 ; People v. Green (1980) 27 Cal.3d 1, 48, 164 Cal.Rptr. 1, 609 P.2d 468.)...