Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence
May 4th, 2021

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 includes […]


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Present Mental Competence: Defendant Must Be Able to Both Consult With Counsel and Assist in Preparation of His or Her Defense
April 27th, 2021

The materials relating to the March 2021 CALCRIM revisions include a comment and request from attorney John T. Philipsborn regarding the failure of California judges “to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions” (See full text of the […]


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Felony Murder Special Circumstance: When Appropriate Tison/Banks Factors Should Include Defendant’s Absence During the Killing
April 20th, 2021

The cases have repeated explained that the defendant’s presence during the killing is an important factor to consider as to both the major participant and reckless indifference elements of culpability as to a defendant who did not kill and was not an actual killer.   In Tison, the high court stressed the importance of presence […]


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March 2021 CALCRIM Revisions
April 16th, 2021

Effective March 12, 2021, the Judicial Council approved the following changes to CALCRIM: 1.Revisions to CALCRIM 202, 222, 520, 591, 730, 763, 1140, 1151, 1193, 1202, 1820, 2044, 2520, 2521, 2522, 2624, 2651. 2.Adoption of new CALCRIM 768 and 1933. 3.Revocation of CALCRIM 3220. https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-EFF5-4271-9F84-01B5C2D97B75 See CALCRIM Revisions for an overview and commentary on some […]




Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors
April 13th, 2021

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.   Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with […]


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Felony Murder Special Circumstance: Reckless Indifference — Discrete Knowledge Elements Should Be Separately Enumerated
April 6th, 2021

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.) […]


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Are Jurors More Likely to Acquit Under CALCRIM than CALJIC?
March 29th, 2021

The California Supreme Court permits criminal jurors to be instructed on the definition of proof beyond a reasonable doubt using either CALJIC 2.90 or CALCRIM 2.20.   California law imposes a duty on the trial court to instruct the jury in a criminal case on the presumption of innocence in favor of the defendant and […]


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Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined
March 22nd, 2021

In reliance upon People v. Estrada (1995) 11 Cal.4th 568, 578 the CC states that the court does not have a sua sponte duty to define “reckless indifference to human life.”   Estrada concluded that there is no sua sponte duty as follows: We disagree and find that, when considered in its entirety — as […]


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Overcoming the “Walking Dictionary Myth” When Instructing the Jury
March 17th, 2021

Jury instruction jurisprudence attempts to draw a “bright line” distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning. On one side of this “bright line” the trial judge must sua sponte define terms which have a “technical meaning peculiar to the law.” (See People […]


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Felony Murder: Uncharged Predicate Felony Must Still be Proved Beyond a Reasonable Doubt
March 15th, 2021

PRACTICE NOTE: When a defendant is charged with a felony murder but not the predicate underlying felony, “there is a requirement of proof beyond a reasonable doubt of the underlying felony” (People v. Hart (1999) 20 Cal.4th 546, 609) and “…the defendant is entitled, upon request, to a specific instruction on the necessity of proving […]


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