Under Enmund v. Florida (1982) 458 U.S. 782, 797 the federal Constitution requires an aider and abettor to capital murder to have the intent to kill, and California’s death penalty law permits the jury to find the felony-murder special-circumstance allegation true without finding an intent to kill. But, in Tison v. Arizona (1987) 481 U.S. 137, 158, the united states supreme court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Correspondingly, 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….”b This subdivision brings state law into conformity with [Tison]’ [Citation.]” (People v. Clark (2016) 63 Cal.4th 522, 609.)
CC 730 fails to comport with the Enmund/Tison requirements because it instructs jurors that the felony murder special circumstance can be found true as to an aider and abettor who did not intend to kill and did not commit an act that caused the death without finding that the defendant was a major participant who acted with reckless indifference to human life.
CALCRIM 730 provides as follows:
To prove that this special circumstance is true, the People must prove that:
- The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit)
<insert felony or felonies from Pen. Code,
- The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit)
<insert felony or felonies from Pen. Code, § 190.2(a)(17)>;
<Give element 3 if defendant did not personally commit or attempt felony.>
[3. If the defendant did not personally commit [or attempt to commit] <insert felony or felonies from Pen. Code,
- 190.2(a)(17)>, then a perpetrator, (whom the defendant was aiding and abetting before or during the killing/ [or] with whom the defendant conspired), personally committed [or attempted to commit] <insert felony or felonies from Pen. Code,
- 190.2(a)(17)>;] AND
(3/4). (The defendant/ <insert name or description of person causing death if not defendant>) did an act that caused the death of another person.
When tailored to a case where an aider and abettor of a robbery neither killed nor intended to kill, the instruction would only require the jury to find the following:
To prove that this special circumstance is true, the People must prove that:
- The defendant … aided and abetted … a robbery;
- The defendant intended to aid and abet the perpetrator in committing robbery;
- If the defendant did not personally commit robbery, then a perpetrator, (whom the defendant was aiding and abetting before or during the killing/ personally committed robbery
AND
- The person causing death did an act that caused the death of another person.
Accordingly, CC 730 is fundamentally defective and should be modified and/or combined with CC 703 to require the jury to find additional Enmund/Tison elements unless they find the defendant was the actual killer or intended to kill.
Nor would it suffice to give both CC 730 and CC 703. Without modification CC 730 would simply conflict with CC 703 and there would be no assurance that the jury followed CC 703 instead of CC 730. (See Francis v. Franklin (1985) 471 U.S. 307 [“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.”].)
