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Court of Appeal:
Judge Erred in Reducing LWOP Sentence to Two-Year Term
Opinion Says Trial Court, at Resentencing, Effectively Overruled Jury’s Finding That Defendant Acted With Reckless Indifference to Life Based on Faulty Understanding of Mandated Felony Murder Instructions
By Kimber Cooley, associate editor
Div. Six of this district’s Court of Appeal held yesterday, in a decision that restores a sentence of life without the possibility of parole for a man convicted under a felony murder theory, that a jury’s special circumstance finding that a defendant had been a major participant in the underlying felony and had acted with reckless indifference to human life is binding on a trial court at resentencing.
Santa Barbara Superior Court Judge Pauline Maxwell granted a resentencing petition filed by Lavell White—who had been convicted of the killing of Terence Richardson, a man shot by White’s accomplice during an attempted robbery of a marijuana dealer in December 2014—even though the jury had made factual findings consistent with the amended felony murder rule.
At issue is whether changes made to Penal Code §189 in 2019 undermine White’s conviction, which was based on a felony murder theory. As amended, the section provides that a person may be liable for first-degree murder for a death occurring during an attempted robbery only if the defendant was the actual killer, aided and abetted with the intent to kill, or “was a major participant in the underlying felony and acted with reckless indifference to human life.”
Under Penal Code §1172.6, a defendant convicted before the 2019 amendments who “could not presently be convicted of murder because of changes to Section…189” may be entitled to resentencing.
Even though the felony murder rule had not yet been amended at the time of White’s trial, the question of whether he acted as a major participant in the robbery and with reckless indifference to human life was presented to the jury at the sentencing phase because Penal Code §190.2(d) provides:
“[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant…assists in the commission of [an attempted robbery] which results in the death of some person…shall be punished by death or imprisonment in the state prison for life without the possibility of parole.”
Jury Findings
The jury found that White—who stood outside the car carrying a replica assault weapon while an accomplice got in the vehicle with a handgun—had been a “major participant” in the attempted robbery and had acted with “reckless indifference to human life.”
White did not request instruction based on two recently decided California Supreme Court cases which set forth the relevant factors to be considered in determining whether a participant in a felony murder may be subjected to a sentence of death or life without the possibility of parole—the 2015 opinion in People v. Banks, dealing with what it means to be a “major participant,” and the 2015 decision in People v. Clark addressing “reckless indifference.”
After his sentence was affirmed on appeal, in an unpublished decision authored by Justice Kenneth Yegan, the defendant petitioned for resentencing.
Maxwell said:
“Although this case was decided after Banks and Clark, the jury was not properly instructed as to the Banks/Clark factors…This Court finds that relief is available because the jury did not use the Clark factors with respect to the reckless indifference to human life finding even though the Appellate Court…found that the trial evidence was sufficient to support the findings under Banks and Clark.”
Writ Petition
Santa Barbara District Attorney John T. Savrnoch petitioned for a writ of mandate directing the trial court to vacate its order redesignating White’s murder conviction as attempted second-degree robbery and to reinstate the original murder conviction and sentence of life without the possibility of parole.
Yesterday’s opinion, authored by Yegan and joined in by Presiding Justice Arthur Gilbert and Justice Hernaldo J. Baltodano, granted the requested writ of mandate.
Yegan wrote that “[t]he trial court effectively overruled the jury’s unanimous special circumstance finding that White had acted with reckless indifference to human life,” wrongly “rejected this court’s conclusion” in the direct appeal decision that the Banks and Clark factors were met, and “erroneously concluded that the jury’s…finding had no preclusive effect because the jury had not been ‘…instructed as to the Banks/Clark factors.’ ”
Preclusive Effect
Yegan noted that issue preclusion bars relitigating issues already decided but explained that White argues that the jury’s post-Clark finding of reckless indifference to human life does not have a preclusive effect because “[a] jury that has not been instructed on the Clark factors and therefore has no awareness of their existence cannot be said to have considered those factors in any meaningful sense.”
Unpersuaded, he wrote that “[t]here is no authority requiring that a jury be instructed sua sponte on the various Clark factors,” citing jurisprudence establishing that such instructions are not mandated and noting that no material changes have been made to the form jury instructions governing special circumstances.
He said that “[w]e assume the court was unaware” of the cited case law and remarked that “we do not fault the trial court because the record shows that neither party” brought it to the court’s attention during resentencing.
He continued:
“Although the jury was not informed of the Banks/Clark factors, Banks and Clark changed ‘the trial environment’…and defense counsel was free to take advantage of this change. It is primarily because of the change in the trial environment that ‘[n]either [a] jury’s pre-Banks and Clark findings nor a court’s later sufficiency of the evidence review…supplies a basis to reject an otherwise adequate prima facie showing [under section 1172.6…]….As for instructions, after Banks and Clark, defense counsel could have asked that optional additional instruction on the…factors be given to guide the jury in its deliberations….Defense counsel here made no such request for additional instructions.”
He continued:
“White’s ‘remedy for any alleged instructional error that affected the verdict was his appeal from the judgment of conviction. His failure to raise the argument on direct appeal….forfeited that claim…, and the subsequent petition process created by the Legislature when it enacted [§1172.6] did nothing to change the applicable law so as to resurrect an argument he had already abandoned.’ ”
The case is People v. Superior Court (White), 2025 S.O.S. 85.
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