SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 703 Special Circumstances: Intent Requirement For Accomplice After June 5, 1990C Felony Murder, PC 190.2(a)(17)
TABLE OF CONTENTS
F 703.1 TITLES AND IDENTIFICATION OF PARTIES
F 703.1 Inst 1 Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder—Title
F 703.1 Inst 2 Identification Of Prosecution And Defendant
F 703.2 INSTRUCTIONS
F 703.2 Inst 1 Concurrence Of Act And Intent To Kill
F 703.2 Inst 2 “Decide” vs. “Find Beyond A Reasonable Doubt”
F 703.2 Inst 3 Deletion Of Argumentative And Duplicative Language
F 703.2 Inst 4 Definition Of Reckless Indifference Requires Knowledge That The Felony Carries A Higher Probability Of Death Than Normally Attends Such Crime (PC 190.2(d))
F 703.2 Inst 5 Reckless Indifference: Factors For The Jury To Consider
F 703.2 Inst 6 Mere Knowledge That Accomplice Is Armed Insufficient To Prove Knowledge Of “Grave Risk Of Death”
Return to Series 700 Table of Contents.
F 703.1 Titles And Identification Of Parties
F 703.1 Inst 1 Special Circumstances: Intent Requirement For Accomplice After June 5, 1990—Felony Murder—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, andCCM-004.
F 703.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 703.2 INSTRUCTIONS
F 703.2 Inst 1 Concurrence Of Act And Intent To Kill
*Modify CC 703, paragraph 2, sentence 1 as follows [added language is underlined; deleted language is stricken]:
. . . the People must prove beyond a reasonable doubt either that when the defendant [did the alleged acts] [committed the allleged crimes] that either:
A. The defendant intended to kill,; or the People must prove all of the following:
B. The defendant:
1. The defendant Was a major participant in the [alleged] crime;
AND
2. When the defendant participated in the [alleged] crime, (he/she) acted with reckless indifference to human life.
Points and Authorities
As now constructed CALCRIM 703 fails to clearly state the required elements, especially the concurrence of act and intent elements. (See generally FORECITE F 251 Inst 3.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 703.2 Inst 2 “Decide” vs. “Find Beyond A Reasonable Doubt”
*Modify CC 703, paragraph 1 and 5 as follows [added language is underlined; deleted language is stricken]:
[Change “decide” to “find beyond a reasonable doubt” ]
Points and Authorities
See FORECITE F 702.2 Inst 7.
F 703.2 Inst 3 Deletion Of Argumentative And Duplicative Language
*Modify CC 703, paragraph 3, sentence 1 as follows [deleted language is stricken]:
The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance[s] of __________ <insert felony murder special circumstance[s]> to be true.]
Points and Authorities
See FORECITE F 702.2 Inst 8.
F 703.2 Inst 4 Definition Of Reckless Indifference Requires Knowledge That The Felony Carries A Higher Probability Of Death Than Normally Attends Such Crime (PC 190.2(d))
*Add to CC 703, paragraph 3:
This requires the person to actually know that under the circumstances the crime in which [he] [she] is participating carries a higher probability of death than normally attends the commission of such crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Higher Than Normal Probability Of Death—It is a fundamental principle of the 8th Amendment jurisprudence that “death eligibility” statutes, such as the special circumstances utilized in California (PC 190.2), must rationally narrow the class of individuals who are death eligible for “valid penalogical reason[s].” (Spaziano v. Florida (1984) 468 US 447, 460 fn 7 [82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137, 149 [95 LEd2d 127.) This principle requires a state to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (1990) 497 US 764, 773 [111 LEd2d 606; 110 SCt 3092], quoting Godfrey v. Georgia (1980) 446 US 420, 428 [64 LEd2d 398; 100 SCt 1759]; 8th and 14th Amendments.)
The “reckless indifference” provision of PC 190.2(d) violates this principle by permitting the jurors to conclude that mere felony murder liability as defined by PC 189 is sufficient to establish “reckless indifference.” As the Tison court put it, “the possibility of bloodshed is inherent in the commission of any violent felony ….” (Tison 481 US at 151.) Hence, to assure that the felony murder special circumstance will rationally identify those felony murder defendants who will be death (or life without parole) eligible as required by the 8th Amendment, the jury must be instructed both upon the subjective awareness requirement (See FORECITE F 8.80.1a above) and upon the requirement that the felony committed carried a higher probability of death than normally attends such a crime.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
[See Brief Bank #B-574for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 8.80.1b.
F 703.2 Inst 5 Reckless Indifference: Factors For The Jury To Consider
*Add to CC 703:
In deciding whether the People have met their burden of proving beyond a reasonable doubt that the defendant committed the crime with reckless indifference to human life, the factors to consider include, but are not limited to the following:
a. whether the defendant acted as a ringleader or mastermind for the underlying criminal enterprise;
b. whether the defendant personally used a deadly weapon in the commission of the offense;
c. whether the defendant knew that a participant in the offense was armed with a deadly weapon;
d. whether the defendant knew that a participant in the offense used a deadly weapon;
e. whether the defendant urged or enticed another participant to commit acts involving the extreme likelihood that death would result to an innocent human being;
f. the nature and extent of the contact between the defendant and any crime victim(s);
g. whether the defendant had an intent that someone be killed or injured;
h. whether the defendant personally committed, or threatened to commit, acts of violence against the victim(s);
i. whether the defendant had the opportunity to prevent harm to an innocent person, and whether or not [he] [she] exercised the opportunity to do so;
j. any other evidence relating to whether the defendant acted with reckless indifference to human life.
Points and Authorities
CJ 8.80.1 fails to provide the jury with any criteria for determining whether defendant acted with reckless indifference. Hence, as with witness credibility (CC 226) and eyewitness identification (CC 315), the jury should be instructed on any factors relevant to such a determination. (See FORECITE F 105.2 Inst 2.) Factors should be added to or deleted from the list depending upon the particular circumstances of the case.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
CALJIC NOTE: See FORECITE F 8.80.1c.
F 703.2 Inst 6 Mere Knowledge That Accomplice Is Armed Insufficient To Prove Knowledge Of “Grave Risk Of Death”
*Add to CC 703:
Mere knowledge that an [alleged] co-participant in the crime is armed and the anticipation that lethal force might be used to accomplish the _______________ <insert alleged felony> is not sufficient by itself to prove beyond a reasonable doubt that the defendant knew the alleged conduct involved a grave risk of death.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Grave Risk Of Death Standard Not Satisfied By Knowledge That Accomplice Is Armed And Anticipating That Lethal Force Might Be Used—See Tison v. Arizona (1987) 481 US 137, 150-51 [107 SCt 1676; 95 LEd2d 127] [“indeed, the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves” ]; Enmund v. Florida (1982) 458 US 782 [102 SCt 3368; 73 LEd2d 1140] [defendant did not meet the “reckless indifference” standard under Tison even though he, as the getaway driver in a robbery, might have anticipated that lethal force might be used].
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.1 [Death Qualification Based On Killing By An Accomplice During Another Felony Must Be Narrow]
FORECITE CG 13.2 [Death Eligibility Factor Must Not Be Overly Broad or Vague]
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITECG 13.
