Felony Murder Special Circumstance: “Actual Killer” Determination — CALCRIM 703 Misstates the Burden of Proof
January 28th, 2021

California law and the federal constitution require a finding of one of the following as an essential element of the felony murder special circumstance enumerated in Penal Code § 190.2(a)(17): The defendant was the actual killer of the victim; or The defendant acted with intent to kill; or The defendant aided and abetted the murder […]


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Defendants Whose Cases Are Pending on Appeal May Seek to Stay Their Appeals in Order to Pursue Relief Under SB 1437
January 4th, 2021

People v. Gentile (Dec. 17, 2020, S256698) concluded that SB 1437 bars a conviction for second degree murder under the natural and probable consequences theory. It also held that the procedure set forth in section PC 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply […]


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Felony Murder Special Circumstance: Any One Tison Factor May, by Itself, Leave the Jurors with A Reasonable Doubt
December 23rd, 2020

CC 703 includes the following caveat regarding the specific factors listed for the jury’s consideration as to the reckless indifference and major participant allegations:   No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant [acted with reckless indifference to human life] [was a […]


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SB 1437, Which Amended the Natural and Probable Consequences Doctrine as It Relates to Murder, Bars a Conviction for Second Degree Murder Under That Theory
December 23rd, 2020

When an accomplice aids and abets a crime, the accomplice is culpable for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Natural and probable consequences liability can be imposed even if the accomplice did not intend the additional offense. (People v. McCoy […]


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Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting
December 21st, 2020

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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Felony Murder Special Circumstance: Reckless Indifference — Consciousness of Guilt Not Alone Sufficient to Prove Guilt or Supply Missing Elements
December 18th, 2020

CC 703 invites the jurors to consider the defendant’s actions after the crime in determining the “reckless indifference” by telling the jurors that they may consider the following specific factor: “Did the defendant have an opportunity … to help the victim(s)?” However, the defendant’s post-crime actions are not alone sufficient to prove reckless indifference. “…[A] […]


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CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony
December 16th, 2020

CC 202 instructs the jurors as follows:   If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you.   This language is too limited because jurors should have the ability to request readback of testimony even if […]


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PG XI(D)(3) CALCRIM Instructions Listing Specific Factors for Juror Consideration.
November 3rd, 2020

It is appropriate to instruct the jurors on specific factors relevant to a given factual issue. (See e.g., People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors]; People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; U.S. v. Pierra (9th Cir. 2001) 254 F3d 872 [same]; […]




The Most Important “Non-Critical” Part of A Trial
October 31st, 2020

In its September 2020 revisions the CALCRIM committee modified CC 202 to provide as follows (added language is highlighted):   If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you. It is the record that must guide […]


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CC 330: “Should Consider” vs. “Consider”
October 27th, 2020

CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old.   Compare Paragraph 2:   In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development. [Emphasis […]


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