F 8.81.17

F 8.81.17 n1 Felony Murder Special: Independent Felonious Intent (PC 190.2(a)(17)).

If the evidence raises a factual issue as to whether a defendant had an independent felonious intent to commit a felony which was not merely incidental to the murder, the second enumerated paragraph of CJ 8.81.17 must be included in the jury instruction. (People v. York (92) 11 CA4th 1506, 1511-12 [15 CR2d 66].)

F 8.81.17 n2 Felony Murder Special: “Merely Incidental” Not Ambiguous (PC 190.2(a)(17)).

The “merely incidental” language of CJ 8.81.17 is not erroneously ambiguous. (People v. Raley (92) 2 C4th 870, 903 [8 CR2d 678].)

F 8.81.17 n3 Felony Murder Special: Green Applies To Arson (PC 190.2(a)(17)).

Where the evidence is subject to the construction that the defendant set fire to a building in order to kill the occupants, it is error to refuse to instruct the jury upon the Green rule per paragraph 2 of CJ 8.81.17. (People v. Clark(90) 50 C3d 583, 608-09 [268 CR 399].)

F 8.81.17 n4 Felony Murder Special: Whether Green Instruction Must Be Given Sua Sponte (PC 190.2(a)(17)).

In People v. Pensinger (91) 52 C3d 1210, 1255-56 [278 CR 640], the Supreme Court held that the trial court has no sua sponte duty to instruct the jury that there can be no felony murder special circumstance if the felony was merely incidental to the murder. The court concluded that the Green doctrine cannot be called a general principle of law closely and openly connected with the facts before the court giving rise to a sua sponte duty to instruct.

Williams v. Calderon (9th Cir. 1995) 52 F3d 1465, 1476, held that the independent felonious purpose element is “not mere state law nicety” but is an essential element of the charge without which the PC 190.2(a)(17) special circumstance “would run afoul of the requirements of [the 8th Amendment].”

F 8.81.17 n5 Felony Murder Special: Sua Sponte Duty To Instruct Upon Defenses, Etc. When Underlying Felony Is Not Substantively Charged (PC 190.2(a)(17)).

When a defendant is charged with a felony murder special circumstance but not the substantive felony, the court has a sua sponte duty to instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.” (People v. Mickey (91) 54 C3d 612, 675-77 [286 CR 801].)

F 8.81.17 n6 Felony Murder Special: Intent To Kill For Aider And Abettor (PC 190.2(a)(17)).

The California Supreme Court has rejected the argument that CJ 8.81.17 allows the jury to find the special circumstance as to an aider and abettor without finding an intent to kill. (People v. Pinholster (92) 1 C4th 865, 954-55 [4 CR2d 765].) However, the USSC has not yet addressed this issue and, therefore, it should be preserved for federal court. Moreover, upon request, the defendant should have the right to clarify the instruction to assure the jury understands that an aider and abettor must intend to kill. (See also, People v. Raley (92) 2 C4th 870, 898 [8 CR2d 678].)

F 8.81.17 n7 Felony Murder Special: When Intent To Kill Required Per Carlos (PC 190.2(a)(17)).

When a felony murder special circumstance is alleged to have occurred after the decision in Carlos and before Anderson, Carlos governs and the jury must be instructed on the need to find intent to kill. (People v. Duncan (91) 53 C3d 955, 973, n4 [281 CR 273]; see also People v. Ashmus (91) 54 C3d 932, 981 [2 CR2d 112].)

F 8.81.17 n8 Felony Murder Special: Disjunctive Instruction As To Paragraphs 1 And 2 Is Error (PC 190.2(a)(17)).

Paragraph 2 of CJ 8.81.17 defines what is meant in paragraph 1 by the phrase “while the defendant was engaged in the commission of a robbery, etc.” Prior to 1991, CALJIC did not make it clear that the judge should not instruct upon paragraphs 1 and 2 in the disjunctive. (In 1991 CALJIC was revised to make this clear by adding the word “and” between the two paragraphs.) Therefore, in pre-1991 cases, there may be an issue if the paragraphs were given in the disjunctive or if it can otherwise be argued that the jury would not have understood that it must consider both paragraphs 1 and 2. (See People v. Ramsey UNPUBLISHED (C010238) [disjunctive instruction on paragraphs 1 and 2 held to be prejudicial error].) [The Ramsey opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-111.]

F 8.81.17 n9 Felony Murder Special: Reckless Indifference As Unconstitutionally Vague (PC 190.2(a)(17)).

Proposition 115 (PC 190.2(c)) creates an exception to the Anderson (People v. Anderson (87) 43 C3d 1104, 1138-48 [240 CR 585]) requirement that accomplices intend to kill for the felony murder special circumstance. (PC 190.2(a)(17).) An accomplice in a felony murder is now subject to the death penalty if the jury finds that the accomplice was a “major participant” in the underlying felony and displayed “reckless indifference to human life.”

People v. Estrada (95) 11 C4th 568, 580-81 [46 CR2d 586] rejected the argument that the phrase “reckless indifference to human life” is too vague to satisfy the constitutional guarantees of due process and the proscription against cruel and unusual punishment. (US Const, 8th and 14th Amendments.) However, this holding is not binding on the federal courts and, therefore, the issue should be preserved in state court pending its resolution in federal court.

Notwithstanding Estrada, these terms may be challenged on 14th Amendment due process grounds because they are vague and fail to provide adequate guidelines for imposition of criminal liability under the statute. (People v. Superior Court (Caswell) (88) 46 C3d 381, 389-90 [250 CR 515]; Allen v. Superior Court (80) 113 CA3d 42, 50 [169 CR 608].) Vague laws offend several important values. First, they may trap the innocent by failing to provide fair warning. Second, a vague law impermissibly delegates basic policy matters to the police, judges and juries for resolution on an ad hoc and subjective basis. (Grayned v. Rockford (72) 408 US 104, 108-09 [33 LEd2d 222]; People v. Superior Court (Caswell) 46 C3d at 389-99.)

Moreover, because this is a capital eligibility statute the vagueness of the statute also implicates the 8th Amendment of the federal constitution. (Godfrey v. Georgia (80) 446 US 420 [64 LEd2d 398].) [See FORECITE F 8.80a-b.] [FORECITE subscribers may obtain additional briefing on this issue. Ask for Brief Bank # B-574d.]

F 8.81.17 n10 Felony Murder Special: “Yoshiato Window” (PC 190.2(a)(17)).

On June 6, 1990, Proposition 115 added PC 190.2(d) allowing felony murder special circumstances liability (PC 190.2(a)(17)) for a “major participant” who acts with “reckless indifference” even if the defendant neither intended to kill nor was the actual killer. (See PC 190.2(c).) Obviously, this substantial expansion of special circumstance liability cannot be applied to crimes committed before June 6, 1990. (Tapia v. Superior Court (91) 53 C3d 282, 297-99 [279 CR 592].)

Moreover, because of the confusion regarding whether Proposition 114 would take precedence over Proposition 115, it may also be argued that Proposition 115 may not be applied to crimes committed before June 25, 1992, when the Supreme Court’s decision in Yoshiato v. Superior Court (92) 2 C4th 978 [9 CR2d 102] clarified the validity of Proposition 115.

There are at least three legal principles upon which such a claim may be made:

1) Due Process/Notice under the State (Art. I § 15) and Federal (14th Amendment) constitutions. (See People v. Green (91) 227 CA3d 692, 698 [278 CR 140].)

2) Ex Post Facto / Due Process principle which preclude the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (88) 205 CA3d 514, 518 [252 CR 418].)

3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175].)

(An even stronger argument applies to the window between the Court of Appeal decision in Yoshiato and the grant of review: 8/5/91 – 10/24/91.) [Additional analysis of “Yoshiato Window” (Phillips and Thoma) published in CACJ Forum Vol. 20 / No. 1, pp. 66-71, is available to FORECITE subscribers. Ask for Article Bank # A-28.]

However, in People v. Superior Court (Clark) (94) 22 CA4th 1541, 1550-51 [28 CR2d 46], the court rejected the argument that the subsequently superseded opinion in Yoshiato raises due process and ex post facto issues regarding crimes committed during the period between issuance of the Yoshiato appellate opinion and acceptance of the case for review by the California Supreme Court. The argument was rejected on the basis that the Yoshiatoopinion was never final and therefore never had any precedential value.

F 8.81.17 n11 Felony Murder Special: All Felony Murders Subject To Special Circumstance Liability (PC 190.2(a)(17)).

Note that, taken together, the Proposition 115 Amendments to PC 189 and PC 190.2(a)(17) make all types of first degree felony murders subject to special circumstance allegations.

F 8.81.17 n12 Overbreadth Constitutional Challenge To Felony Murder Special Circumstance (PC 190.2(a)(17)).

In U.S. v. Cheely (9th Cir. 1994) 36 F3d 1439, the court held that the 8th Amendment precludes the imposition of the death penalty for a killing resulting from the use of a mail bomb. The court held that the statute was disproportionately severe and insufficiently narrow to preclude the prospect of “wanton” and “freakish” death sentencing. “The constitutional defect in [the statutes] is that they create the potential for impermissibly disparate and irrational sentencing because they encompass a broad class of death-eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them. [Fn omitted].” (Cheely, 36 F3d at 1444.)

The court illustrated its point by comparing two hypothetical scenarios to show that the death penalty could be imposed under the statute in a disparate manner:

Scenario #1: “one person mails another an explosive or inflammable substance in furtherance of a joint plan to blow a crater in the local college’s football field, to protest the ascendancy of athletics over academics. If for any reason the substance accidentally explodes while in route, [fn omitted] and a person dies as a result, both conspirators could be sentenced to death.”

Scenario #2: “A paid assassin successfully used a mail bomb to murder a NAACP leader.” Because, under the statute, one jury could sentence the football field bombers to death, while another could reject the death penalty as to the paid assassin, the court concluded that the mail bomb statute did not adequately narrow the class of death-eligible persons and did not foreclose the prospect of “wanton or freakish” imposition of the death penalty. “The government argues that these sections genuinely narrow the class of death-eligible persons because they authorize the death penalty only for those relatively few persons who use mail bombs. [Fn omitted] This argument reveals a fundamental misunderstanding of the case law. Narrowing is not an end in itself, and not just any narrowing will suffice. The narrowing must be such that it forecloses the prospect of the cruel and unusual punishment from ‘wanton or freakish’ imposition of the death penalty. When juries are presented with a broad class, composed of persons of many different levels of culpability, and are allowed to decide who among them deserves death, the possibility of aberrational decisions as to life or death is too great. [Emphasis added.] The statute before us is unconstitutional because it utterly fails to foreclose this prospect.” In other words, the fact that the statute reduces the number of death-eligible persons does not necessarily establish that it is sufficiently narrow to preclude “wanton or freakish” imposition of the death penalty. Otherwise, “[a] state could … save its capital sentencing scheme simply by dividing the homicide section of its criminal code to provide, for example, murder by gun, murder by knife, by burning … etc.” (Cheely, 36 F3d at 1445, n 14.)

This analysis applies with even greater force to the felony murder special circumstance in California. Although the felony murder special circumstance does limit the number of persons to which the death penalty is applicable, it encompasses so “many levels of culpability” that the danger of “wanton and freakish” imposition of the death penalty is even greater than was present in Cheely. For example, the following three scenarios demonstrate the disparity of conduct encompassed by the felony murder rule:

Scenario #1: The defendant enters a locked car (PC 459) in a deserted parking lot. Unbeknownst to the defendant, another person is nearby and, when confronted by that person, the defendant flees. Several other persons form a “posse” which hunts the defendant down. The posse begins attacking the defendant with a baseball bat and the defendant, with his back literally to the wall, takes out a knife and kills his attackers.

Scenario #2: The defendant carefully seeks to avoid any risk of harm to others by planning a burglary of an isolated commercial building at a time when no one is present. As he is driving away safely and at a normal speed after the burglary, the defendant unavoidably runs over a pedestrian who darted out between two parked cars in an unlighted area.

Scenario #3: During the robbery of a store, the defendant takes the victim into a back room and shoots him point blank in the back of the head execution style.

In each of the above scenarios, the defendant is death eligible as a result of the felony murder special circumstance. Therefore, the defendant who acted in self-defense (which is not a defense to felony murder (People v. Loustaunau (86) 181 CA3d 163, 170 [226 CR 216]) and the defendant who inadvertently ran over a pedestrian after the burglary (felony murder applies to killings during the escape from a burglary (People v. Fuller (78) 86 CA3d 618, 623-24 [150 CR 515)) could be sentenced to death while the cold-blooded, execution-style murderer could be given life without parole. These scenarios graphically illustrate how the “levels of culpability” are even greater under the California felony murder rule than under the statutes struck down by the Cheely court.

Moreover, there need not even be a causal relationship between the felony and the homicide. (See People v. Pock (93) 19 CA4th 1263, 1276 [23 CR2d 900].)

With the advent of People v. Davis (94) 7 C4th 797 [30 CR2d 50], the reach of the felony murder rule has been extended even more. Now, a defendant may be subjected to fetus murder, and hence, special circumstance felony murder, for the unintentional killing of a 9-week old fetus which the defendant does not even know exists.

Accordingly, the California felony murder special circumstance (PC 190.2(a)(17)) should be held unconstitutional under the 8th Amendment of the federal constitution.

F 8.81.17 n13 Felony Murder Special: No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged (PC 190.2(a)(17)).

[See FORECITE F 8.21 n10.]

F 8.81.17 n14 Duplication Of Elements In Felony Murder Special Circumstance As 8th Amendment Violation (PC 190.2(a)(17)).

In State v. Bigbee (Tenn. Sup. Ct. 94) 885 SW2d 797, the Tennessee Supreme Court held that the state is forbidden by the Tennessee and federal constitutional prohibitions against cruel and unusual punishment to use felony murder as an aggravating (special) circumstance on the ground that felony murder duplicates the crime itself and does not perform the constitutionally mandated task of narrowing the class of death-eligible defendants. (See also, State v. Middlebrooks (92) 840 SW2d 317.) The lead opinion concluded that the added requirements of “recklessness” and “substantial participation in the underlying felony” do not provide the required narrowing.

In Tennessee v. Middlebrooks (92) 840 SW2d 317, the court made the following observations: “… the felony murder narrowing device fails to meet both the quantitative and qualitative requirements for a narrowing device. It provides no meaningful narrowing and, to the extent that narrowing does exist, it does not serve to identify the defendants most deserving of death. In these states, felony murderers are treated essentially the same as they were pre-Furman… the simple fact of the accompanying felony makes the defendant death-eligible [and] the jury can exercise its unfettered discretion to determine whether defendant is to live or die. [Para.] Commentators have always criticized the felony murder rule for its bootstrapping effect. [Citation.] It vaults an offense into the class of murders without the malice finding usually required, and then, still without any culpability finding, elevates what otherwise might not be a murder to first-degree murder. [Citation.] In addition, … a third level of bootstrapping arises as the felony murder defendant is moved up into the supposedly restricted class of defendants eligible for death. [Citation.] [Para.] The perverse result of the felony murder narrowing device is even more troubling because the usual class of first-degree murderers is made up largely of two groups of defendants — felony murderers and pre-meditated and deliberated murderers. The only defendants who are eliminated by the felony murder narrowing device are those who kill with pre-meditation and deliberation — i.e., in cold blood — but not during the course of a felony. A simple felony murder accompanied by any other aggravating factor is not worse than a simple, pre-meditated, and deliberate murder. If anything, the latter which by definition involves a killing in cold blood, involves more culpability.” (Middlebrooks, 840 SW2d at 344.)

F 8.81.17 n15 Collateral Estoppel Precludes Re-litigation Of Underlying Felony And Felony Murder Convictions (PC 190.2(a)(17)).

See FORECITE F 4.007 n10.

F 8.81.17 n16 Felony Murder Special: Specific Intent To Commit Underlying Offense Not Required.

In People v. Davis (95) 10 C4th 463, 519-20 [41 CR2d 826], the Supreme Court held that specific intent to commit the underlying felony is not an element of the felony murder special circumstance under PC 190.2(a)(17). This rule is inconsistent with the requirement that specific intent to commit the underlying felony be proven in felony murder cases pursuant to PC 189. (See People v. Berryman (95) 6 C4th 1048, 1079 [25 CR2d 867].)

F 8.81.17 n17 “Engaged In” vs. “Committed.”

(See FORECITE F 2.23.1 n1.)

F 8.81.17 n18 Felony Murder Special Circumstance: Robbery Or Burglary Need Not Be The Primary Intent.

People v. Michaels (2002) 28 C4th 486, 529 [122 CR2d 285] held that burglary–murder and robbery–murder special circumstances were proper despite the fact that defendant’s primary purpose in committing the murder of his girlfriend’s mother was to protect his girlfriend from her abuse, and taking property from the victim was his “secondary” purpose.

F 8.81.17a

Felony Murder Special Circumstances Application Of Merger (Ireland) Doctrine

(PC 190.2(a)(17))

*To be added at end of CJ 8.81.17:

You may not convict the defendant of first degree murder based upon the commission or attempted commission of burglary if the defendant entered the premises with the intent to [murder] [assault]. [You may return a first degree verdict based on the burglary only if you find that the defendant had the non-assaultive intent to __________ when [he] [she] entered.]

Points and Authorities

ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.

In People v. Garrison (89) 47 C3d 746, 788-89 [254 CR 257], the Supreme Court held that the merger doctrine, (People v. Ireland (69) 70 C2d 522 [75 CR 188]), applies to the felony murder special circumstance set forth in PC 190.2(a)(17).

Accordingly, the jury may not return this special circumstance if the underlying felony was an integral part of the murder. (See People v. Farmer (89) 47 C3d 888, 914-15 [254 CR 508].)

In a situation where the underlying felony is a burglary and there is both an assaultive and non-assaultive intent alleged, the bracketed portion of the above instruction should be given to eliminate juror confusion about the applicability of the burglary to the special circumstance.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

NOTES

Applicability Of Merger Doctrine To Arson Special Circumstance. (See also People v. Ockerman UNPUBLISHED (E008125) [failure to instruct on merger doctrine as to arson special circumstance held to be prejudicial error].) [The Ockerman opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-108.]

F 8.81.17b

Felony Murder Special Circumstance:

“Still-In-Progress” Instruction Inapplicable To Crimes Other Than Robbery

(PC 190.2(a)(17))

*To be added at end of CJ 8.81.17:

The crime of __________ is complete when the defendant no longer has control of the victim.

Points and Authorities

For purposes of felony murder a crime generally is complete when the victim is no longer detained. (See People v. Silva (88) 45 C3d 604, 632 [247 CR 573]; People v. Guzman (88) 45 C3d 915, 953-54 [248 CR 467]; see also People v. Thompson (90) 50 C3d 134, 171-72 [266 CR 309], holding that for purposes of the felony murder rule, a violation of PC 288 continues only so long as the defendant has “control” of the victim; see also People v. Castro (94) 24 CA4th 578, 586 [32 CR2d 529] [same as to rape].)

The one exception is robbery which continues until the defendant reaches a place of temporary safety. (See People v. Cooper (91) 53 C3d 1158, 1164-65 [282 CR 450]; see also FORECITE F 8.21.1b.) Therefore, except when the underlying felony is robbery, the above supplement to CJ 8.81.17 should be given.

The court has a sua sponte obligation to instruct the jury as to when the underlying felony ends. (People v. Pearch (91) 229 CA3d 1282, 1299 [280 CR 584].)

F 8.81.17c

Felony Murder Special Circumstance: Green Pinpoint Instruction

*Modify CJ 8.81.17, Green pinpoint instruction, to provide as follows:

To prove the __________ [insert underlying felony] special circumstance, the prosecution must prove beyond a reasonable doubt that the defendant committed the __________ [insert felony] for an independent felonious purpose rather than merely to facilitate or conceal the murder. This requires the prosecution to prove that the defendant had an independent purpose to commit the felony of ___________ wholly independent of the murder. If after considering all of the evidence, you have a reasonable doubt that the defendant had such an independent felonious purpose, you must give the defendant the benefit of the doubt and find [him] [her] not guilty of the __________ [insert felony] special circumstance.

ALTERNATE FORM

To prove the __________ [insert felony] special circumstance, the prosecution must prove beyond a reasonable doubt that the __________ [insert felony] was done for the independent purpose of committing the felony rather than for the purpose of committing the homicide. If the defendant’s primary purpose was to kill or if [he] [she] committed the __________ [insert felony] to facilitate or conceal the homicide, then there was no independent felonious purpose. If, from all of the evidence, you have a reasonable doubt that the defendant committed the __________ for such independent felonious purpose, you must find the defendant not guilty of the __________ special circumstance.

Points and Authorities

The defendant has a right to “direct attention to evidence from which a reasonable doubt could be engendered.” (People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) The defendant has a right to obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600]: pinpoint instruction proper if it is predicated upon defendant’s theory.)

The California Supreme Court has consistently held that the felony murder special circumstance is inapplicable to cases in which the defendant intended to commit the murder and only incidentally committed one of the specified felonies while doing so. (People v. Green (80) 27 C3d 1, 59-62 [164 CR 1]; People v. Thompson (80) 27 C3d 303, 321-25 [165 CR 289]; People v. Hall (86) 41 C3d 826, 831-34 [226 CR 112].) Hence, it is error to refuse a defense instruction that the jury find a felonious purpose independent of murder. (See People v. Clark (90) 50 C3d 583, 608-09 [268 CR 399] [arson special circumstance]; but see People v. Harden (2003) 110 CA4th 848 [a court can refuse to instruct a jury on this legal principle where there is no evidence to support a reasonable inference that commission of the felony was merely incidental to the primary goal of murder].)

Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issue addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15.)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]

(See also FORECITE F 8.81.17 n1 and F 8.81.17 n2.)

Alternative Language. In People v. Horning (2004) 34 C4th 871, 907-08, the Supreme Court stated that “we have never suggested that we created two separate requirements, or that any precise language was required to explain the [Green] concept to the jury. There is nothing magical about the phrase “to carry out or advance” the felony. Indeed we ourselves have stated the requirement without using that phrase. [Citations.]” In the footnote in Horning the court discussed non-CALJIC wording that would be acceptable:

The CALJIC instruction does not use the term, “independent purpose,” which we have also sometimes employed in explaining this concept. (See People v. Mendoza (2000) 24 C4th 130, 182; see also People v. Green(80) 27 Cal.3d 1, 61 [employing the term, “independent felonious purpose”].) Compare also our description of the requirement in People v. Bonin (89) 47 C3d 808, 850, which uses the language, “in order to advance an independent felonious purpose,” but does not additionally use the not-incidental-to-the-murder language. (People v. Horning, 34 C4th at 908 n. 8.)

F 8.81.17d

Accident Should Be Defense To Felony Murder Special Circumstance

*Add to CJ 8.81.17:

To find that the special circumstances, referred to in these instructions as murder in the commission of a __________ [insert appropriate felony], it must be proved:

1. The murder was committed while defendant was engaged in the commission or attempted commission of a __________; and

2. Defendant committed the act resulting in the victim’s death in order to advance an independent felonious purpose.

An act committed by accident is not committed in order to advance an independent felonious purpose. If you have a reasonable doubt whether the act resulting in the victim’s death was committed by accident, you must give the defendant the benefit of that doubt and find the special circumstance untrue.

Points and Authorities

“The felony-murder special circumstance requires that the ‘defendant [must] commit [] the act resulting in death in order to advance an independent felonious purpose.’ [Citation.]” (People v. Berryman (93) 6 C4th 1048, 1088 [25 CR2d 867].) Therefore, if the act resulting in death was committed by accident, the defendant should not be subject to special circumstance liability since an accidental act, by definition, cannot be committed for the purpose of furthering an independent felonious purpose. Such a result does not undermine People v. Anderson (87) 43 C3d 1104 [240 CR 585] or the felony-murder rule. First, such a defense precludes conviction of special circumstance felony murder not first-degree felony murder. Second, Anderson did not address this issue. Anderson held that intent to kill is not an element of the felony-murder special circumstance. (43 C3d at 1143.) Anderson did not change the requirement that the act resulting in the death be done in furtherance of the robbery. The cases of People v. Parnell (93) 16 CA4th 862 [20 CR2d 302], People v. Johnson (92) 5 CA4th 552 [7 CR2d 23] and People v. Young (92) 11 CA4th 1299 [15 CR2d 30] are also inapposite because none of those cases involve a factual issue as to whether the defendant intentionally committed the act resulting in death.

In any event, given the requirement that the act resulting in death must be committed with a certain mens rea — to advance an independent felonious purpose — the jury must be required to find said mens rea and the defendant must be allowed to rely on any evidence or defense which would negate the mens rea. The failure to require the prosecution to prove every element of the charge and/or the preclusion of the defendant from presenting evidence to negate an element of the charge violates settled constitutional principles (compulsory process, right to present a defense, trial by jury, due process; 6th and 14th Amendments.)

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-649.]

F 8.81.17e

Felony Murder Special:

Specification Of Reckless Indifference, Major Participant And Actual Killer Elements

*Add to enumeration of elements in CJ 8.81.17:

3. You are satisfied beyond a reasonable doubt that the defendant was the actual killer of _________.

[or ]

3. If you find that the defendant was not the actual killer of _________, or if you are unable to decide whether the defendant was the actual killer, you are satisfied beyond a reasonable doubt that defendant _______:

a. With the intent to kill,

b. [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] or [assisted] any actor in the commission of the _________(insert crime specified in CJ 8.81.17) which resulted in the death of __________.

[or]

3. If you find that the defendant did not intend to kill and was not the actual killer of _________, or if you are unable to decide whether the defendant intended to kill or was the actual killer, you are satisfied beyond a reasonable doubt that such defendant:

a. With reckless indifference to human life, and

b. As a major participant in the robbery;

c. [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] or [assisted] in the commission of the _________(insert crime specified in CJ 8.81.17) which resulted in the death of __________.

Points and Authorities

The current CJ instructions on the felony murder special circumstance (PC 190.2(a)(17); PC 190.2(b); PC 190.2(c)) are confusing because the major participant/reckless indifference instructions (CJ 8.80.1) are not included with the felony murder special circumstance instruction (CJ 8.81.17) and because the essential elements are not separately enumerated.

A. Sequence

The sequence of the instructions is a matter in the discretion of the trial court. (Nungaray v. Pleasant Valley Lima Bean Growers and Warehouse Assn. (56) 142 CA2d 653, 661-62 [300 P2d 285].) However, it is also an “obvious fact that the sequence of instructions can, in some cases, result in jury confusion.” (People v. Carrasco (81) 118 CA3d 936, 943 [173 CR 688].) “‘The instructions should be arranged in a logical sequence so that the whole will be intelligible to the jury. Symmetry is as necessary to legal exposition for easy understanding as it is to any other form of literary exposition.’” (Ibid., quoting address of Chief Judge Devitt.) Nor does the CALJIC numbering system necessarily supply the most logical sequence. “The editors of CALJIC could not have meant to sequence the instructions to relieve the court of all initiative and responsibility.” (Carrasco, 118 CA3d at 944.)

In the present situation crucial elements of the felony murder special circumstance instruction are included in the introductory instruction rather than in the instruction which specifies the elements of the special circumstance itself. The more logical sequencing is as set forth above.

B. Enumeration of elements

“It cannot be overemphasized that instructions should be clear and simple in order to avoid misleading a jury. [Internal citation and quote marks omitted].” (People v. Carrasco (81) 118 CA3d 936, 944 [173 CR 688].) Empirical studies have shown that jurors are less likely to understand “sentences with multiple subordinate clauses, and particularly …[sentences with] multiple subordinate clauses before or within the main clause.” (See “Pattern Criminal Jury Instructions” 1988 Report of Subcommittee on Pattern Jury Instructions, Federal Judicial Center; West Group; Appendix A, pp. 167-68, see also Carrow and Carrow, Making Legal Language Understandable: A Psycho Linguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979); Elwork, Sales and Alphini, Juridic Decisions: In Ignorance of The Law or In Light of It, 1 Law & Human Behavior 163 (1977).) Instead of “lengthy compound sentences,” instructions are easier to understand if they are “organized ‘hierarchically’: that is if the more general concepts are discussed first, and then broken down into components.” (Loftus and Doyle, Eyewitness Testimony (3rd ed. 1997) § 12-2(b), pp. 331-32, Lexis Law Publishing.)

Indeed, this is the format that CALJIC uses in enumerating the elements in most of its instructions as illustrated by the use of a general description of the charge and then an enumeration of the required elements in virtually all of the special circumstance instructions. (CJ 8.81.1 – CJ 8.81.21.)

However, in the case of the reckless indifference/major participant instruction, this rule has not been followed. CJ 8.80.1, para 4, contains multiple subordinate clauses and several distinct components of the felony murder special circumstance in a single paragraph consisting of a single compound sentence. Accordingly, the various components should be broken down as set forth above so the jury can clearly identify what it is required to find.

C. Constitutional Basis.

PC 190.4 “plainly contemplates” a jury finding on special circumstance allegations. (People v. Marshall (96) 13 C4th 799, 850-51 [55 CR2d 347] [federal due process (14th Amendment) violated by arbitrarily denying a state-created right]; see also Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175; 100 SCt 2227].) For the same reasons, confusing, misleading or incomplete jury instructions on the requisite elements of a special circumstance violate the federal constitutions due process clause.

The California supreme court has concluded that the 6th amendment right to trial by jury is not applicable to special circumstances. (Marshall, 13 C4 at 851 fn 9.) However, as set forth in the dissenting opinion (13 C4 at 875-880), the federal constitutional right to trial by jury should apply under McMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67; 106 SCt 2411] because California treats a special circumstance as the equivalent of or integral to a criminal offense.

Full and correct instruction on special circumstances is also required in capital cases by the 8th amendment of the federal constitution. Although there is no requirement that the findings prerequisite to death eligibility by made by a jury (see Marshall, 13 C4th at 851) they must, nonetheless, be made and be made reliably to comport with the 8th amendment. (See Buchanan v. Angelone (98) 522 US 269 [139 LEd2d 702; 118 SCt 757] [death eligibility is the critical requirement for compliance with the 8th Amendment].)

Note regarding other issues.

The above instruction deals only with the sequence and clarity of the CJ instruction by proposing a sequence and enumeration of components that will be more understandable to the jury. There are also several substantive challenges to the CJ instruction which should be considered as well. (See FORECITE F 8.80.1 et seq F 8.81.17 et seq.)

F 8.81.17f

Felony Murder: Specific Intent To Commit General Intent Offense

(See FORECITE F 8.21i.)