By Dale Hurd
Mule Creek resident Jose Rivera’s sentence of life without the possibility of parole (LWOP) was reversed on Sept. 8, 2021, by the Sacramento County Superior Court. The reversal was the result of two recent California State Supreme Court cases, Banks (2015) and Clark (2016), which clarified that the special circumstance statute imposed requirements that the defendant must be a “major participant in the crime,” and that he or she acted with “reckless indifference to human life” in order to be found guilty. The court ruled that Rivera did not act “with reckless indifference to human life” during the commission of the robbery and carjacking of which he was convicted.
The court determined nothing in the present case indicated the perpetrators planned or intended anything more serious than an armed robbery/carjacking. The prosecutor conceded as much at trial when he said “their intent is 
not to kill anyone. Their intent is to rip off a car.” The Superior Court based its ruling on six key factors: (1) Rivera did not know a gun would be used until the shooter got out of the car Rivera was driving; (2) That gun was the only weapon used; (3) Rivera was the driver of the second car and not present at the shooting; (4) Rivera had no opportunity to intervene and little opportunity to aid; (5) The crime happened quickly; (6) Rivera didn’t know the shooter was likely to use deadly force.
The court concluded that “the record does not contain evidence Petitioner Ri- vera knowingly created a grave risk of death by participating in the armed robbery/carjacking of the victim.” The court vacated the special circumstance finding and barred retrial of that allegation due to insufficient evidence.
Citing the U.S. Supreme Court, the Sacramento County Superior Court ruled that the Constitution requires reversal and constitutional demands under state law. Moreover, in 2020, the California Supreme Court firmly established that claims based on the requirement of being a “major participant” in the underlying felony who acted with “reckless disregard for human life” were appropriate on habeas corpus. Rivera’s petition was not barred as untimely.
The next step for Rivera is determination of an appropriate sentence and resentencing under Senate Bill 1437 revisions to the felony murder rule. When asked for comment, Rivera said, “I want people to be aware that this is happening. Inmates are getting relief under Banks and SB 1437, if you qualify.”
Originally published by the Mule Creek Post
