Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment did not prohibit capital punishment for an accomplice to a felony murder if the accomplice acted as a major participant in the underlying felony and his or her mental state was one of “reckless indifference to human life.” (Estrada, at p. 575.) Section 190(d) requires both elements but no court has explained how the term “major participant” should be defined.
The California Supreme Court has granted review to consider this question:
See, People v. Banks, S213819. (B236152; nonpublished opinion; Los Angeles County Superior Court; BA347305 Petition for review after the Court of Appeal amended and affirmed judgments of conviction of criminal offenses.
The court limited review to the following issues:
(1) Was the evidence sufficient to establish that defendant Matthews was a “major participant” within the meaning of Penal Code section 190.2 subdivision (d)?
(2) Does the true finding of the special circumstance violate due process? (U.S.Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)
It has been held that the term “major participant” as used in PC 190.2(d) is commonly understood by those familiar with the English language and, therefore, an instruction as to its meaning will only be given upon request. (See Estrada (95) 11 C4th at 574 see also People v. Proby (98) 60 CA4th 922, 933.) However, the fact that the California Supreme Court has deemed it necessary to address the meaning of the term provides a renewed basis upon which to request a definitional instruction. Here are some sample definitions which might be might be appropriate to request:
Sample # 1:
A major participant is one whose role is notable or conspicuous and who is one of the more important participants.
Sample # 2:
A major participant is one such as the ringleader, triggerman or the one who planned the crime, whose role is notable or conspicuous and who is one of the more important participants.
Sample # 3:
A major participant must do more than merely aid and abet in the crime; he or she must be directly involved in the commission of the felony as an active participant in planning or carrying out the crime.
The definition of “major” in Alternative # 1 above was suggested by Proby. Proby criticized the use of the “ringleader” and “triggerman” examples in Alternative # 2 above because it “would require… a finding that defendant was a “ringleader” `whose participation was greater in importance than that of other participants.’” (Proby, 60 CA4th at 929.) However, this instruction does not “require” a finding that the defendant was a “ringleader” etc., it merely provides examples of one who may be a major participant. (See e.g., Parker v. Womack (51) 37 C2d 116, 120; People v. Marshall (90) 50 C3d 907, 938; People v. Keenan (88) 46 C3d 478, 504; People v. Mora (95) 39 CA4th 607, 617.)