SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 703 NOTES
TABLE OF CONTENTS
F 703 Note 1 Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder—CALCRIM Cross References And Research Notes
F 703 Note 2 “Major” Participant Special: Constitutional Challenge
F 703 Note 3 Ex Post Facto Limitations To “Major” Participant Special
F 703 Note 4 Special Circumstances: Relationship Of Causation To “Major” Participant Special
F 703 Note 5 “Major” Participant Special Circumstance: Applicable To Both Death And LWOP Cases
F 703 Note 6 “Major” Participant Special Circumstance: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant
F 703 Note 7 Felony Murder Special Circumstance: Definition Of Reckless Indifference
F 703 Note 8 Constitutional Challenges To “Drive-By” Special Circumstance
F 703 Note 9 Major Participant Special: Standing By Is Insufficient
F 703 Note 10 Felony Murder Special Circumstance: Phrase “Major Participant” Not Unconstitutionally Vague
F 703 Note 11 Drive-by Murder Special Circumstance: Requirement Of Specific Intent
F 703 Note 12 Felony Murder Special Circumstance: Instruction On Intent To Kill Required When There Is A Possibility That The Defendant Was Not The Actual Killer
F 703 Note 13 Special Circumstances Requiring Intent To Kill (PC 190.2)
F 703 Note 14 Duty To Instruct On Reckless Indifference
Return to Series 700 Table of Contents.
F 703 Note 1 Special Circumstances: Intent Requirement For Accomplice After June 5, 1990—Felony Murder—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 701 [Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990]
CALCRIM 702 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990C Other Than Felony Murder]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 703 Note 2 “Major” Participant Special: Constitutional Challenge
See FORECITE F 8.80.1a and FORECITE F 8.80.1b for proposed instructions regarding “major participants” in the underlying felony who exhibit “reckless indifference to human life.” (PC 190.2(d).)
Note FORECITE’s proposed constitutional challenge to this provision in FORECITE F 8.81.17 n9.
CALJIC NOTE: See FORECITE F 8.80.1 n2.
F 703 Note 3 Ex Post Facto Limitations To “Major” Participant Special
See FORECITE F 8.81.17 n10.
F 703 Note 4 Special Circumstances: Relationship Of Causation To “Major” Participant Special
In People v. Pock (1993) 19 CA4th 1263, 1274, the court considered the necessity of instructions on causation in a case where the defendant’s felony murder special circumstance liability depended upon whether the defendant’s acts “caused” the victim’s death. The court concluded that instruction upon the “substantial factor” test set forth in CJ 3.41, is satisfactory because a finding that the defendant’s act was a “substantial factor” satisfies the Tison requirement that the defendant be the actual killer or a major participant.
CALJIC NOTE: See FORECITE F 8.80.1 n4.
F 703 Note 5 “Major” Participant Special Circumstance: Applicable To Both Death And LWOP Cases
NOTE: PC 190.2(d) conforms state law with requirements for imposition of a death sentence on a felony murderer set forth by the U.S. Supreme Court in Enmund v. Florida (1982) 458 US 782 [73 LEd2d 1140; 102 SCt 3368] and Tison v. Arizona (1987) 481 US 137 [95 LEd2d 127; 107 SCt 1676]. In People v. Estrada (1995) 11 C4th 568, 578 [46 CR2d 586] the California Supreme Court held that Tison is the source of the language of PC 190.2(d) and the constitutional standards set forth in Tison are, therefore, applicable to all allegations of felony murder special circumstances, regardless of whether the prosecution seeks and exacts the death penalty or a sentence of life without parole. (Estrada, 11 C4th at 575-76.)
CALJIC NOTE: See FORECITE F 8.80.1 n5.
F 703 Note 6 “Major” Participant Special Circumstance: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant
Tison v. Arizona (1987) 481 US 137 [95 LEd2d 127; 107 SCt 1676] is the source of the language of PC 190.2(d) and the constitutional standards set forth in that opinion are, therefore, applicable to all allegations of a felony murder special circumstance. (People v. Estrada (1995) 11 C4th 568, 575-76.) The Tison court did not further define these standards or attempt to delineate precisely the particular types of conduct or the states of mind making one a major participant or demonstrating reckless indifference to life. It did explain, however, that the two requirements may overlap significantly. The greater degree of a defendant’s participation in the felony murder, the more likely that he or she acted with reckless indifference to human life. But the fact that a defendant was a major participant in the felony does not necessarily suffice in and of itself to establish reckless indifference. (Tison, 481 US at 153, 158, fn 12.) After analyzing Tison, the California Supreme Court in Estrada concluded that the mental state of “reckless indifference” to life, within the meaning of PC 190.2(d) is one in which the defendant subjectively appreciated or knew that his or her participation in the underlying felony created a grave risk to human life. (Estrada, 11 C4th at 577-78.) This subjective standard necessarily requires the determination that the defendant actually appreciated the grave life-threatening risk. (see People v. Dellinger (1989) 49 C3d 1212, 1217-19) and this element must be proven even if the defendant was a major participant in the felony. [See Opinion Bank #O-215 for an unpublished opinion in People v. Timms A066707 (2/22/96) reversing on this point.]
CALJIC NOTE: See FORECITEF 8.80.1 n6.
F 703 Note 7 Felony Murder Special Circumstance: Definition Of Reckless Indifference
The trial court has no sua sponte duty to define reckless indifference. (See People v. Estrada (1995) 11 C4th 568, 577-78 [disapproving People v. Purcell (1993) 18 CA4th 65, 73-74].) However, upon request, the court must define the term. (Estrada, 11 C4th at 580.) CALJIC includes such an instruction in CJ 8.80.1 which was approved in People v. Proby (1998) 60 CA4th 922. Any definition of reckless indifference must include a subjective element requiring the defendant to actually know or be aware that his or her actions are “known to carry a grave risk of death.” (Tison v. Arizona (1987) 481 US 137, 157 [95 LEd2d 127; 107 SCt 1676].)
CALJIC NOTE: See FORECITE F 8.80.1 n7.
F 703 Note 8 Constitutional Challenges To “Drive-By” Special Circumstance
(See FORECITE F 8.81.21 n1.)
F 703 Note 9 Major Participant Special: Standing By Is Insufficient
(See People v. Hein DEPUBLISHED (2001) 86 CA4th 683 [defendant who stood in doorway as murder was being committed does not deserve finding of special circumstance].)
CALJIC NOTE: See FORECITE F 8.80.1 n10.
F 703 Note 10 Felony Murder Special Circumstance: Phrase “Major Participant” Not Unconstitutionally Vague
See People v. Hearn DEPUBLISHED (2002) 95 CA4th 1163, 1179.
CALJIC NOTE: See FORECITE F 8.80.1 n11.
F 703 Note 11 Drive-By Murder Special Circumstance: Requirement Of Specific Intent
(See People v. Chavez (2004) 118 CA4th 379.)
CALJIC NOTE: See FORECITE F 8.80.1 n12.
F 703 Note 12 Felony Murder Special Circumstance: Instruction On Intent To Kill Required When There Is A Possibility That The Defendant Was Not The Actual Killer
When there is evidence from which the jury could have based its verdict on an accomplice theory, the jury must be required to find that the defendant intended to aid another in the killing of a human being. (People v. Garrison (1989) 47 C3d 746, 789; see also People v. Williams (1997) 16 C4th 635, 689 [error in failing to instruct on intent to kill under the multiple-murder special-circumstance theory when the defendant was an aider or abettor].)
However, no instruction on intent to kill is necessary when the defendant does not claim that more than one person was involved in the crime (see, e.g., People v. Coleman (1988) 46 C3d 749, 779), or when the evidence shows that defendant was either the actual killer or not involved in the crime at all (see, e.g., People v. Hardy (1992) 2 C4th 86, 193; People v. Warren (1988) 45 C3d 471, 487).
On the other hand, instruction on intent to kill is required “where two persons were involved in the [predicate felony] and the evidence does not preclude the possibility that defendant was not the one who shot the victim.” (People v. Jones (2003) 30 C4th 1084, 1118.)
CALJIC NOTE: See FORECITE F 8.80.1 n13.
F 703 Note 13 Special Circumstances Requiring Intent To Kill (PC 190.2)
Proposition 115 confirmed the interpretation of the felony murder and multiple murder special circumstances in People v. Anderson (1987) 43 C3d 1104, 1138-48, and extended the logic of that opinion by explicitly stating that an “intent to kill” is not an element of any special circumstance in cases involving actual killers, unless the special circumstance specifically requires an intent to kill.
CALJIC NOTE: See FORECITE F 8.80.1 n1.
F 703 Note 14 Duty To Instruct On Reckless Indifference
The Bench Notes indicate that giving the bracketed portion of the instruction defining “reckless indifference to human life” is discretionary with the trial court, citing People v. Estrada (1995) 11 C4th 568, 579. However, in language not quoted in the Bench Notes, the California Supreme Court states that in some cases the definition must be given upon request. (Ibid.) Moreover, the undefined description of “reckless indifference to human life” is unconstitutionally vague and fails to comport with federal and state constitutional guarantees of due process and proscriptions against cruel and/or unusual punishment. (See Godfrey v. Georgia (1980) 446 US 420, 428 [64 LEd2d 398; 100 SCt 1759]; compare People v. Estrada, supra, 11 C4th 568, 580-81.)
