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California Supreme Court:
Non-Shooter Is Not Liable for Murder in Drug-Deal Robbery
Opinion Reverses Lower Courts’ Holdings, Says No Reckless Indifference Where Petitioner Was Unarmed, Unaware Co-Conspirator Had Gun, Crime Occurred in Public Place
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that a defendant was entitled to have his murder conviction overturned in a case where his co-conspirator shot and killed a marijuana dealer during a robbery, saying the evidence did not support a finding that the accused, who helped plan the theft, harbored reckless indifference to human life where he was unarmed, did not know his companion had a gun, and the crime occurred at a public park.
In a unanimous opinion, authored by Justice Kelli Evans, the court declared that the trial court and the Sixth District Court of Appeal had erred in finding that the conviction could be sustained under current law, after legislation significantly narrowed the scope of the felony-murder rule as of Jan. 1, 2019, based on the defendant’s failure to try to stop the shooting.
Under the revisions to Penal Code §189, a felony murder conviction can now only be sustained upon findings that the person charged was a “major participant” in certain delineated felonies—including robbery—and acted with “reckless indifference to human life,” doing away with the former, more liberal standard under which a party could be convicted of murder simply if a victim died during his involvement in one of the listed, inherently dangerous offenses.
As part of the statutory scheme, the Legislature also adopted Penal Code §1172.6, which allows a defendant, who claims that his murder conviction is no longer valid, to file a petition for resentencing. One such petition was filed by defendant Louis Emanuel.
Robbery of Dealer
On Dec. 11, 2012, Emanuel and co-conspirator Jacob Craig Whitley met with an acquaintance, John Sonenberg, at a public park around 3 p.m., to purportedly purchase one pound of marijuana. During the encounter, prosecutors allege that Emanuel and Whitley sought to rob Sonenberg.
Prosecutors presented evidence that Emanuel had tried to walk away after Sonenberg refused to give up the marijuana, saying “let’s go,” but Whitley pulled out a gun and hit the dealer in the head before fatally shooting him in the neck.
A jury convicted both men of first-degree felony murder. After Senate Bill 1437, which proposed the revisions at issue, was passed by the Legislature in 2018, Emanuel filed a petition for resentencing, arguing that the prosecution had not shown that he had acted with reckless indifference.
Then-Santa Clara Superior Court Judge Vanessa Zecher (now a private arbitrator) denied the petition after an evidentiary hearing, saying that Emanuel “created” the situation by participating in the robbery and had an affirmative obligation to do more to prevent the shooting than simply withdrawing his aid and walking away.
In 2023, the Sixth District affirmed, largely adopting the reasoning of the trial court and saying “as one who planned the robbery and was one of its intended beneficiaries, Emanuel had the ability to prevent it from happening or could have done more to prevent Whitley from shooting [Sonenberg].”
Yesterday’s opinion reverses the judgment and directs the trial court to grant the petition, vacate Emanuel’s murder conviction, and resentence him.
Felony Murder Rule
Evans said that “[w]e have not yet had occasion to interpret the felony murder rule as amended by section 189, subdivision (e)(3),” but noted that the high court had “endeavored to elucidate the contours of the…reckless indifference standard” in the 2016 decision in People v. Clark, which dealt with the felony-murder special circumstance.
In Clark, the court explained that “reckless indifference” encompasses both a subjective element, such that the defendant must be aware of and willingly involved in the violent manner in which the offense is committed, and an objective prong, requiring that the risk of death would be known to an ordinary law-abiding citizen.
The case set forth a non-exhaustive list of relevant considerations, including the defendant’s knowledge of weapons, his proximity to the crime and opportunity to stop the killing or help the victim, the duration of the criminal conduct, any awareness that a co-conspirator was likely to kill, and efforts taken to minimize the violence.
Saying that “[t]his Court has thus made clear that participation” in an ordinary robbery in which “the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference,” the jurist applied the Clark factors to the present case.
She opined that the fact that Emanuel did not use a gun and the trial court found that “there was no evidence” demonstrating that he knew that Whitley was armed tilted the factor in favor of the defendant. As to the duration of the crime, she said the 12-minute interaction with Sonenberg was “neutral in this case” as it “did nothing to heighten the risk of violence beyond that inherent in the robbery itself.”
Minimize Violence
Turning to the efforts taken to minimize violence, she noted that courts have taken into consideration the time and place of a crime because events transpiring in public places during the day might reasonably be thought to keep a defendant’s accomplices within the bounds of a plan and minimize the risk of unanticipated violence.
Evans faulted Zecher with discounting these elements in the present case because there was no evidence that the perpetrators planned the crime with the minimization of violence in mind, writing:
“We have never required direct evidence that a felony was planned a certain way for the express purpose of minimizing the risk of violence; circumstantial evidence regarding the plan itself may suffice.”
The justice added:
“The Court of Appeal’s assertion that Emanuel ‘had an opportunity to minimize the risk of violence…but failed to do so,’ suggests this factor weighs in favor of a finding of reckless indifference unless Emanuel made such efforts. That is not necessarily so….Where an ‘objective evaluation of the circumstances’ of the crime suggests the risk of violence is grave, the defendant’s apparent efforts to minimize that risk may be unavailing….Conversely, the absence of such efforts does not necessarily evince a subjective disregard for risk where the objective circumstances of the planned crime suggest the risk of violence posed is no more than that inherent in any violent felony….In such a case, then, the absence of efforts to minimize the risk of violence cannot be said to weigh in favor of a finding of reckless indifference. This applies all the more so when the planned crime does not involve the use of weapons.”
Distinguishing the case from a home invasion robbery of a methamphetamine dealer’s residence, she said that “where a defendant plans to commit an unarmed robbery of a marijuana dealer at a public park in the middle of the afternoon, the objective risk of violence posed by the crime and reasonably anticipated by the perpetrator is far less grave.”
Proximity to Crime
Evans noted that “[b]oth the trial court and the Court of Appeal placed much emphasis on Emanuel’s ‘physical proximity’ to and purported opportunity to restrain the crime,” but remarked:
“The essential question underpinning our analysis is not whether Emanuel did enough to try to stop Whitley’s unplanned act of violence; it is whether Emanuel acted with the requisite mens rea….The focus should not be on the ultimate efficacy of his actions, but on what his actions reveal about his mental state. The courts below did not carefully consider evidence bearing on Emanuel’s state of mind but rather simply judged that he had not employed an adequate measure of restraint. That is not the standard by which we assess reckless indifference.”
The jurist continued:
“[E]ven setting aside Emanuel’s actions before Whitley pulled out the gun, the evidence is insufficient to support a finding that Emanuel’s failure to intervene reflected intentional inaction indicative of reckless indifference to human life….[W]here violence unfolds ‘quickly,’ a defendant may ‘lack control’ over the actions of his confederates….
“We do not suggest that a rapidly unfolding crime may never allow for a finding of reckless indifference to human life. But where a crime unfolds quickly,…the failure to restrain a cohort…cannot be said to weigh in favor of a finding of reckless indifference without some evidence…indicating that the defendant had a meaningful opportunity to do so.”
As to evidence that Emanuel immediately fled the scene without seeking to call for an ambulance or to render aid to the victim, she commented:
“Considering the location and timing of the shooting, it could be inferred that Emanuel was motivated to flee the scene as quickly as possible to avoid arrest, whether or not he understood the extent of Sonenberg’s injuries…Particularly where the presence of other persons nearby makes it more likely that Sonenberg would receive aid without intervention by Emanuel.”
Under these circumstances, she declared:
“Here, based on the trial court’s findings, there is no evidence Emanuel planned anything other than a strong-arm daylight robbery in a public park. Nor is there evidence that his actions created a grave risk of death. Accordingly, although Emanuel’s conduct after the shooting may be offensive, given the ‘relative paucity’ of other evidence supporting a finding of reckless indifference to human life, his culpability falls short of the benchmark set by section 189, subdivision (e)(3).”
The case is People v. Emanuel, 2025 S.O.S. 1476.
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