CC 703 requires the jury to find the Enmund/Tison requirements only if they find that the defendant was not “the actual killer….” However, the term “actual killer” is not defined in CC 703 or anywhere else in the CALCRIM instructions.
This is a critical omission because the legislature did not intend the term “actual killer” 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:
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 Jennings, supra, 46 Cal.3d at p. 979; see Banks, supra, 61 Cal.4th at p. 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].)
No CC instruction tells the jury that an “actual killer” is one who “personally killed” the victim. 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 703 and/or CC 730 should be modified preclude the jury from predicating a felony murder special circumstance on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant personally killed the victim.
