The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:
Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission or attempted commission of a designated felony when a person was killed, the defendant is now liable under the felony-murder rule only if: (1) the defendant was the actual killer; (2) the defendant was not the actual killer but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in committing murder in the first degree; or (3) the defendant was a major participant in the underlying designated felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).)
CC 540A instructs that:
A person [who was the actual killer] may be guilty of felony murder
even if the killing was unintentional, accidental, or negligent.
The CC 540A Bench Notes anticipate that this language will also be included in other felony murder instructions:
When giving this instruction with CALCRIM No. 540B or with CALCRIM No. 540C, give the bracketed phrase [who was the actual killer].
However, the term “actual killer” is not defined in CC 540A, 540B or 540C.
This is a critical omission because the legislature did not intend the term “actual killer” — as used in SB 1437 (PC 189(e) — to be so broad as to allow an aider and abettor who did not personally kill the victim to be considered an actual killer. To the contrary, the statutory language indicates that the roles of aider and abettor versus actual killer are distinct. SB 1437 says that a defendant isn’t liable for felony murder if that person “is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (People v. Lewis (2021) 11 C5th 952, 959.)
Section 190.2, subdivision (c) provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets . . . any actor in the commission of murder in the first degree” is subject to the death penalty. Interpreting this provision, People v. Anderson (1987) 43 Cal.3d 1104, 1147, declared: “[W]hen the defendant is an aider and abettor rather than the actual killer, intent must be proved.” (See also People v. Jones (2003) 30 Cal.4th 1084, 1117.)
Moreover, although PC 190.2(b) does not define the phrase “actual killer,” the California Supreme Court has used the term “personally killed” when describing liability of an “actual killer” for the felony-murder special circumstance under section 190.2. (See People v. Jennings (1988) 46 Cal.3d 963, 979; see People v. Banks (2015) 61 Cal.4th 788, 794).) Thus, it is “legal error” to “only” instruct the jury that the prosecution must prove that the defendant “did an act that caused the death of another person.” (People v. Garcia (2020) 46 Cal.App.5th 123, 156.) Such an instruction erroneously allows the jury to find the special circumstance true if it determines that the defendant “caused” the victims death without finding beyond a reasonable doubt that the defendant “personally killed” the victim. (Ibid. [CC instructions allowed DA to erroneously argue that defendant was the actual killer even if he didn’t personally kill the victim].)
The court in Garcia explained that the meaning of” ‘actual killer'” under is PC 190.2 is literal: the actual killer is the one who personally killed the victim. (Garcia, supra, 46 Cal.App.5th at pp. 151-152.) To personally kill the victim is to directly cause the victim’s death, not just to proximately cause it. (Id. at 151.) While handing a murder weapon to the person who actually kills the victim might result in liability as an aider and abettor under PC 190.2 subdivision (c) or (d), it does not qualify as an act of an “actual killer” under PC 190.2, subdivision (b). (Garcia, at 154.) Thus, the special circumstance was submitted to the jury on a legally invalid theory, that is, that the defendant could be found liable as the actual killer just for handing duct tape to a coperpetrator, even if the defendant did not personally participate in placing the tape on the victim’s face. (Id. at 154-155; see also People v. Vang (2022) 82 Cal.App.5th 64.)
Accordingly, Garcia supports the interpretation of the term “actual killer” as the person (or persons) who personally killed the victim. “The legislative history also supports the view that the Legislature understood the term “actual killer” to mean the person who “personally” commits the homicidal act.” (People v. Vang supra, 82 Cal.App.5th at 86.)
Yet no CC instruction tells the jury that an “actual killer” is one who “personally committed the homicidal act.” For example, CC 703 fails to include any definition of actual killer at all. And CC 730 (para 3/4) only requires the jury to find that the underlying felony “was a substantial factor in causing the death of another person….”
Accordingly, CC 540A, 540B, and 540C should be modified to preclude the jury from predicating a felony murder conviction on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant “personally committed the homicidal act.” Similarly, the term “actual killer” as used in CC 703, CC 722, CC 723, CC 730, CC 731, and CC 732 should be require a finding that the defendant “personally committed the homicidal act.”