Return to CALJIC Part 5-8 – Contents
F 8.80.1 n1 Special Circumstances Requiring Intent To Kill (PC 190.2).
Proposition 115 confirmed the interpretation of the felony murder and multiple murder special circumstances in People v. Anderson (87) 43 C3d 1104, 1138-48 [240 CR 585], and extended the logic of that opinion by explicitly stating that an “intent to kill” is not an element of any special circumstance in cases involving actual killers, unless the special circumstance specifically requires an intent to kill.
F 8.80.1 n2 “Major” Participant Special: Constitutional Challenge.
See FORECITE F 8.80.1a and FORECITE F 8.80.1b for proposed instructions regarding “major participants” in the underlying felony who exhibit “reckless indifference to human life.” (PC 190.2(d).)
Note FORECITE’S proposed constitutional challenge to this provision in FORECITE F 8.81.17 n9.
F 8.80.1 n3 Ex Post Facto Limitations To “Major” Participant Special.
See FORECITE F 8.81.17 n10.
F 8.80.1 n4 Special Circumstances: Relationship Of Causation To “Major” Participant Special.
In People v. Pock (93) 19 CA4th 1263, 1274 [23 CR2d 900], the court considered the necessity of instructions on causation in a case where the defendant’s felony murder special circumstance liability depended upon whether the defendant’s acts “caused” the victim’s death. The court concluded that instruction upon the “substantial factor” test set forth in CJ 3.41, is satisfactory because a finding that the defendant’s act was a “substantial factor” satisfies theTison requirement that the defendant be the actual killer or a major participant.
F 8.80.1 n5 “Major” Participant Special Circumstance: Applicable To Both Death And LWOP Cases.
Note: PC 190.2(d) conforms state law with requirements for imposition of a death sentence on a felony murderer set forth by the U.S. Supreme Court in Enmund v. Florida (82) 458 US 782 [73 LEd2d 1140; 102 SCt 3368] and Tison v. Arizona (87) 481 US 137 [95 LEd2d 127; 107 SCt 1676]. In People v. Estrada (95) 11 C4th 568, 578 [46 CR2d 586] the California Supreme Court held that Tison is the source of the language of PC 190.2(d) and the constitutional standards set forth in Tison are, therefore, applicable to all allegations of felony murder special circumstances, regardless of whether the prosecution seeks and exacts the death penalty or a sentence of life without parole. (Estrada, 11 C4th at 575-76.)
F 8.80.1 n6 “Major” Participant Special Circumstance: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant.
Tison v. Arizona (87) 481 US 137 [95 LEd2d 127; 107 SCt 1676] is the source of the language of PC 190.2(d) and the constitutional standards set forth in that opinion are, therefore, applicable to all allegations of a felony murder special circumstance. (People v. Estrada (95) 11 C4th 568, 575-76 [46 CR2d 586].) The Tison court did not further define these standards or attempt to delineate precisely the particular types of conduct or the states of mind making one a major participant or demonstrating reckless indifference to life. It did explain, however, that the two requirements may overlap significantly. The greater degree of a defendant’s participation in the felony murder, the more likely that he or she acted with reckless indifference to human life. But the fact that a defendant was a major participant in the felony does not necessarily suffice in and of itself to establish reckless indifference. (Tison, 481 US at 153, 158, fn 12.) After analyzing Tison, the California Supreme Court in Estrada concluded that the mental state of “reckless indifference” to life, within the meaning of PC 190.2(d) is one in which the defendant subjectively appreciated or knew that his or her participation in the underlying felony created a grave risk to human life. (Estrada, 11 C4th at 577-78.) This subjective standard necessarily requires the determination that the defendant actually appreciated the grave life-threatening risk. (see People v. Dellinger (89) 49 C3d 1212, 1217-19 [264 CR 841]) and this element must be proven even if the defendant was a major participant in the felony. [An unpublished opinion in People v. Timms A066707 (2/22/96) reversing on this point is available to FORECITE subscribers, ask for Opinion Bank # O-215.]
F 8.80.1 n7 Felony Murder Special Circumstance: Definition Of Reckless Indifference.
The trial court has no sua sponte duty to define reckless indifference. (See People v. Estrada (95) 11 C4th 568, 577-78 [46 CR2d 586] [disapproving People v. Purcell (93) 18 CA4th 65, 73-74 [22 CR2d 242].) However, upon request, the court must define the term. (Estrada, 11 C4th at 580.) CALJIC includes such an instruction in CJ 8.80.1 which was approved in People v. Proby (98) 60 CA4th 922 [70 CR2d 706]. Any definition of reckless indifference must include a subjective element requiring the defendant to actually know or be aware that his or her actions are “known to carry a grave risk of death.” (Tison v. Arizona (87) 481 US 137, 157 [95 LEd2d 127; 107 SCt 1676].) [Additional briefing on the Tison requirement is available to FORECITE subscribers. Ask for Brief Bank B-574a.]
F 8.80.1 n8 Constitutional Challenges To “Drive-By” Special Circumstance.
(See FORECITE F 8.81.21 n1.)
F 8.80.1 n9 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 8.80.1 n10 Major Participant Special: Standing By Is Insufficient.
(See People v. Hein DEPUBLISHED (2001) 86 CA4th 683 [104 CR2d 85] [defendant who stood in doorway as murder was being committed does not deserve finding of special circumstance].)
F 8.80.1 n11 Felony Murder Special Circumstance: Phrase “Major Participant” Not Unconstitutionally Vague.
See People v. Hearn DEPUBLISHED (2002) 95 CA4th 1163, 1179 [116 CR2d 298].
F 8.80.1 n12 Drive-by Murder Special Circumstance: Requirement of Specific Intent.
(See People v. Chavez (2004) 118 CA4th 379.)
F 8.80.1 n13 Felony Murder Special Circumstance: Instruction On Intent To Kill Required When There Is A Possibility That The Defendant Was Not The Actual Killer.
When there is evidence from which the jury could have based its verdict on an accomplice theory, the jury must be required to find that the defendant intended to aid another in the killing of a human being. (People v. Garrison(89) 47 C3d 746, 789; see also People v. Williams (97) 16 C4th 635, 689 [error in failing to instruct on intent to kill under the multiple-murder special-circumstance theory when the defendant was an aider or abettor].)
However, no instruction on intent to kill is necessary when the defendant does not claim that more than one person was involved in the crime (see, e.g., People v. Coleman (88) 46 C3d 749, 779), or when the evidence shows that defendant was either the actual killer or not involved in the crime at all (see, e.g., People v. Hardy (92) 2 C4th 86, 193; People v. Warren (88) 45 C3d 471, 487).
On the other hand, instruction on intent to kill is required “where two persons were involved in the [predicate felony] and the evidence does not preclude the possibility that defendant was not the one who shot the victim.” (People v. Jones (2003) 30 C4th 1084, 1118.)
Felony Murder Special Circumstance:
Definition Of “Major Participant”
*Add to CJ 8.80.1:
Alternative # 1:
A major participant is one whose role is notable or conspicuous and who is one of the more important participants.
Alternative # 2:
A major participant is one such as the ringleader, triggerman or the one who planned the crime, whose role is notable or conspicuous and who is one of the more important participants.
Alternative # 3:
A major participant must do more than merely aid and abet in the crime; he or she must be directly involved in the commission of the felony as an active participant in planning or carrying out the crime.
Points and Authorities
It has been held that the term “major participant” as used in PC 190.2(d) is commonly understood by those familiar with the English language and, therefore, an instruction as to its meaning will only be given upon request. (SeePeople v. Estrada (95) 11 C4th 568, 574 [46 CR2d 586]; see also People v. Proby (98) 60 CA4th 922, 933 [70 CR2d 706].)
The definition of “major” in Alternative # 1 above was suggested by Proby. Proby criticized the use of the “ringleader” and “triggerman” examples in Alternative # 2 above because it “would require… a finding that defendant was a “ringleader” `whose participation was greater in importance than that of other participants.'” (Proby, 60 CA4th at 929.) However, this instruction does not “require” a finding that the defendant was a “ringleader” etc., it merely provides examples of one who may be a major participant. (See e.g., Parker v. Womack (51) 37 C2d 116, 120 [230 P2d 823]; People v. Marshall (90) 50 C3d 907, 938 [269 CR 269]); People v. Keenan (88) 46 C3d 478, 504 [250 CR 550]; People v. Mora (95) 39 CA4th 607, 617 [46 CR2d 99].)
People v. Proby (98) 60 CA4th 922, 926. [Defendant actively participated in execution of the robbery; provided the trigger man with a gun and helped take money out of the safe]. People v. Bustos (94) 23 CA4th 1747, 1753-54 [29 CR2d 112] [defendant admitted planning the robbery seeing the codefendant with a knife, hitting the victim and seeing the codefendant stab her (which did not surprise the defendant]. The use of examples in a “such as” format is not uncommon. (See e.g. CJ 2.06, 4.61, 4.61.5, 9.35, 9.36, 12.08, 12.42, 16.155, 16.261.)
Definition Of Reckless Indifference Requires Knowledge That The Felony Carries A
Higher Probability Of Death Than Normally Attends Such Crime
*Add to CJ 8.80.1 as further element in addition to subjective knowledge requirement (See FORECITE F 8.80.1.a):
A defendant aids, abets, counsels, commands, induces, solicits, requests or assists in a __________ with reckless indifference to human life if [he] [she] knows the __________ in which [he] [she] is participating carries a higher probability of death than normally attends the commission of such crime.
Points and Authorities
It is a fundamental principle of 8th Amendment jurisprudence that “death eligibility” statutes, such as the special circumstances utilized in California (PC 190.2), must rationally narrow the class of individuals who are death eligible for “valid penological reason[s].” (Spaziano v. Florida (84) 468 US 447, 460 fn 7 [82 LEd2d 340]; see also Tison v. Arizona (87) 481 US 137, 149 [95 LEd2d 127.) This principle requires a state to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (90) 497 US 764, 773 [111 LEd2d 606; 110 SCt 3092], quoting Godfrey v. Georgia (80) 446 US 420, 428 [64 LEd2d 398; 100 SCt 1759]; 8th and 14th Amendments.)
The “reckless indifference” provision of PC 190.2(d) violates this principle by permitting the jurors to conclude that mere felony murder liability as defined by PC 189 is sufficient to establish “reckless indifference.” As theTison court put it, “the possibility of bloodshed is inherent in the commission of any violent felony ….” (Tison 481 US at 151.) Hence, to assure that the felony murder special circumstance will rationally identify those felony murder defendants who will be death (or life without parole) eligible as required by the 8th Amendment, the jury must be instructed both upon the subjective awareness requirement (See FORECITE F 8.80.1a above) and upon the requirement that the felony committed carried a higher probability of death than normally attends such a crime.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
[Additional briefing on this issue is available to FORECITE subscribers. See Brief Bank # B-574c and ask for Brief Bank # B-574a and # B-574d.]
Reckless Indifference: Factors For The Jury To Consider
*Add to CJ 8.80.1:
In making your determination as to whether the evidence introduced in this case proves that a defendant acted with reckless indifference to human life, you may consider the presence or absent of the following factors:
a. whether the defendant acted as a ringleader or mastermind for the underlying criminal enterprise;
b. whether the defendant personally used a deadly weapon in the commission of the offense;
c. whether the defendant knew that a participant in the offense was armed with a deadly weapon;
d. whether the defendant knew that a participant in the offense used a deadly weapon;
e. whether the defendant urged or enticed another participant to commit acts involving the extreme likelihood that death would result to an innocent human being;
f. the nature and extent of the contact between the defendant and any crime victim(s);
g. whether the defendant had an intent that someone be killed or injured;
h. whether the defendant personally committed, or threatened to commit, acts of violence against the victim(s);
i. whether the defendant had the opportunity to prevent harm to an innocent person, and whether or not [he] [she] exercised the opportunity to do so;
j. any other evidence relating to whether the defendant acted with reckless indifference to human life;
Points and Authorities
CJ 8.80.1 fails to provide the jury with any criteria for determining whether defendant acted with reckless indifference. Hence, as with witness credibility (CJ 2.50) and eyewitness identification (CJ 2.92), the jury should be instructed on any factors relevant to such a determination. Obviously, factors may be added to or deleted from the list depending upon the particular circumstances of the case.
Requirement that Actual Killer Be Major Participant In Predicate Felony and
Have Reckless Indifference to Human Life
*Replace CJ 8.80.1 paragraph 4 with the following:
However, regardless of whether the defendant was the actual killer or an aider and abetter, you cannot find the special circumstance true unless [at the time of the killing] [when the act[s] of aiding and abetting [was] [were] committed] the defendant either:
1. Intended to kill, or
2. Acted with reckless indifference to human life and was a major participant in the crime of ____(PC 190.2(a)(17) crime) which caused the death of a human being, namely ________.
Points and Authorities
CJ 8.80.1 requires that an accomplice to the murder be a major participant and have the added mental state of “reckless indifference to human life.” However, no similar requirements are required for the actual killer. This distinction is apparently based on the assumption that an actual killer is necessarily more culpable than an accomplice. (See eg., People v. Anderson (87) 43 C3d 1104, 1138-48 [240 CR 585] [no intent to kill requirement for actual killer].)
However, in the context of felony murder, whether or not a person is the actual killer does not necessarily reflect upon that person’s relative culpability. This is so because felony murder imposes strict liability and has no causation or foreseeability elements. (See People v. Escobar (96) 48 CA4th 999, 1018-19 [55 CR2d 883]; People v. Pock (93) 19 CA4th 1263, 1276 [23 CR2d 900].) In other words, felony murder liability is imposed regardless of whether the killing was unforeseeable, accidental or even in self-defense. (See People v. Loustaunau (86) 181 CA3d 163, 170 [226 CR 216].)
Consider the following hypothetical:
An accomplice plans and executes an armed robbery. The defendant does not participate in the planning or commission of the robbery but merely serves as the driver in the get away car. While driving from the scene of the robbery, at a safe and normal speed, a pedestrian unexpectedly darts out from behind a car, without affording the defendant driver any chance to apply the brakes or avoid hitting the pedestrian, and the pedestrian is killed. In this situation the actual killer–the driver of the car–was neither a major participant in the underlying felony nor did he harbor any intent to kill or have reckless indifference to human life.
It would therefore be absurd to say, that the actual killer would be more culpable than the accomplice. Yet under the current CJ instructions the accomplice could not be death eligible without the major participant and reckless indifference findings while no added elements would have to be found as to the actual killer. If anything, the accomplice who personally planned and committed the robbery would be the more culpable of the two.
This precise issue was not resolved in either Enmund v. Florida (82) 458 US 782 [73 LEd2d 1140; 102 SCt 3368] or Tison v. Arizona (87) 481 US 137 [95 LEd2d 127; 107 SCt 1676] which concerned accomplice rather than actual killer liability. One federal circuit case has stated–without considering the issue–that Enmund applies in cases of “accomplice felony murder.” (Greenawalt v. Ricketts (9th Cir. 1991) 943 F2d 1020, 1028.) The 8th Circuit has concluded that “limiting Enmund/Tison to “accomplice felony murder” “unduly narrows” those cases. (Reeves v. Hopkins (8th Cir. 1996) 102 F3d 977, 984-5 [reversed on other grounds in Hopkins v. Reeves (98) 524 US 88 [141 LEd2d 76; 118 SCt 1895]; cf., Pruett v. Norris (8th Cir. 1998) 153 F3d 579 [instruction that actual killer must manifest extreme indifference to the value of human life satisfied Tison].)
Accordingly, CJ 8.80.1 should be modified to require the “major participant” and “reckless indifference” [or intent to kill] requirements as to the actual killer.
This instruction is required by the 8th Amendment of the federal constitution which requires that a criminal sentence must be proportionate to the personal responsibility and moral guilt of the defendant. (Enmund v. Florida(82) 458 US 782 [73 LEd2d 1140; 102 SCt 3368]; Tison v. Arizona (87) 481 US 137 [95 LEd2d 127; 107 SCt 1676].)
Felony Murder Special Circumstance:
Elements Should Be Specified And Included In CJ 8.81.17
*Modify CJ 8.80.1 as follows:
[Delete discussion of felony murder special circumstance in CJ 8.80.1 and supplement CJ 8.81.17 with FORECITE F 8.81.17e.]
Points and Authorities
The treatment of the specific felony murder special circumstance in CJ 8.80.1, a general introductory instruction, is potentially confusing and misleading. The felony murder elements should be addressed in CJ 8.81.17. [See FORECITE F 8.81.17e.]
Modification When Crime Involves Fetal Victim
*Modify CJ 8.80.1 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)