Hmmm. Ponder this one, if you will.
It's the only published opinion from the Court of Appeal today. (Thus far, anyway.) It's got a lot of intuitive appeal.
But, upon reflection, I wonder if that intuitive appeal isn't entirely wrong.
The question is whether Ruman Richardson was a "major participant" in a first degree murder. If so, he's ineligible for resentencing, and his sentence of 26 years to life stands.
It was a botched robbery in which Mr. Richardson was the getaway driver. Mr. Richardson stayed in the vehicle and never went into the store; by contrast, after ordering the store owner to get down on the floor, one on his confederates shot and killed the owner.
Normally, if you're merely the getaway driver, precedent's pretty clear that you're not a major participant -- even though you're still guilty of felony murder -- and are hence potentially eligible for resentencing. There's a California Supreme Court case on point in this regard. So Mr. Richardson has at least facially a fairly strong case.
What dooms him in the Court of Appeal, however, is that after the shooting, once his confederates left the store, a bystander saw the participants heading towards the getaway vehicle, at which point Mr. Richardson (who was still in the car) said something like "Shoot him, shoot him." At which point one of the other participants in the crime fired a shot at the bystander, which missed but nonetheless deterred him from further interaction with the criminals, who then fled.
According to the Court of Appeal, the fact that Mr. Richardson said "Shoot him, shoot him" means that, beyond a reasonable doubt, he was a major participant in the murder.
Now, Mr. Richardson's got a decent response, which is that his saying "Shoot him, shoot him" had nothing whatsoever to do with the actual murder, which had already happened by that point. Sure, it'd be great evidence of his active involvement if the bystander had been killed. But he wasn't.
But the Court of Appeal holds that the fact that Mr. Richardson could command his confederates to shoot at the bystander proves that he's a major participant; again, beyond a reasonable doubt. In the words of Justice Ramirez: "[P]etitioner’s statement, “Shoot him,” distinguishes this case from Banks. Up until that point, for all the evidence showed, petitioner was no more than a getaway driver. That statement, however, shows that he was aware that his coparticipants were armed. Even more important, it shows that he took on — or already had — a role in directing the robbery and the conduct of his coparticipants. He had the right to decide to use lethal force and to order his coparticipants to do so."
As I was saying, at first glance, there seems a lot right about that conclusion.
But the more I thought about it, the more I thought that it's wrong. Or, at a minimum, doesn't establish the requisite proof (beyond a reasonable doubt) to a categorical extent.
I get why Justice Ramirez would think that a person who said "Shoot him" was indeed in a leadership position and hence a major participant. Or, as he said, that the command demonstrates that the speaker "had the right to decide to use lethal force and to order his coparticipants to do so."
But, in truth, that you give an order doesn't mean that you necessarily have that role. Maybe you're just yapping. Maybe you're just kibitzing. Maybe you're just excited (and/or excitable). Indeed, we've even invented a term for people who give commands from precisely such a role: we say that they're speaking from the "peanut gallery". It's eminently conceivable that Mr. Richardson, who was (after all) only the getaway driver, was speaking from precisely such a setting. I don't see how one can categorically say, without an evidentiary hearing, that the fact that he said "Shoot him" necessarily means that beyond a reasonable doubt he "had the right to decide to use lethal force and to order his coparticipants to do so."
I've been watching a lot of kids sporting events recently (it being summer and all), so let suggest an analogy that I think demonstrates the point.
Imagine a team in the middle of a closely contested game. A player on the winning team -- let's call him "Richardson" -- mostly sits on the bench, which (coincidentally) is in the shape of a getaway vehicle. In the game, Richardson plays maybe a minute or two, so he's in the game, but he doesn't shoot, doesn't score, and definitely isn't one of the main players in the game. But, at a critical moment in the game, the best player on his team has the ball on offense and is approaching the other team's goal. I'm thinking it's a water polo game, but it could be basketball, soccer, or what have you. In the midst of the best player's attack, from the back row on defense -- or maybe even from the bench -- Richardson screams "Shoot, shoot!" And the best player indeed thereafter shoots and scores, thereby winning the city championship.
At which point Richardson puts on his resume: "Major participant in City Championship game."
I doubt many of us would think that Richardson's appellation in that regard was accurate. Sure, the guy shot. But unless the guy shot because Richardson told him to, I'd hardly call Richardson a major player on the team (or in the game). Ditto for a parent (or fan) in the stands who likewise said he was a "major participant" in the victory because he, too, screamed out "Shoot!" before the guy took the shot.
It's simply not true that just because you tell someone to shoot that means that the speaker had "the right to decide to [shoot] and to order his coparticipants to do so." Maybe you did. But maybe, like the bench player or fan, you were just talking -- potentially, even, out of turn and/or totally irrelevantly.
Indeed, in the present (actual) case, the case for "major participant" is even weaker than in the not-so-hypothetical I just posited. Because, here, the speaker (Mr. Richardson) didn't even suggest the winning shot. He merely suggested a different "losing" and/or irrelevant (to the murder charge, anyway) shot. Mr. Richardson didn't order the shot that killed the owner; instead, he suggested a shot that missed, and didn't give rise one iota to the murder charge. To compare it to my analogy, it's as if the sports-playing Richardson said that he was a "major participant" because Best Player previously scored a goal in a one-goal game and then, later, Richardson told Best Player to "Shoot, shoot!" at which point Best Player did so and missed.
In such a setting, we'd hardly call Richardson a "major contributor" to the victory just because he told someone else to shoot an unsuccessful shot at some point later in the game. So too here.
That you tell someone to shoot doesn't prove that you've got that role. If you're a coach and the guy listens to you and shoots, okay, great, I can see that argument that you're a major contributor.
But Mr. Richardson wasn't the coach. He was the getaway driver. That's not enough, standing alone, to establish major participation beyond a reasonable doubt as a matter of law.
Even if the guy later screams "Shoot."
