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March 2021 CALCRIM Revisions

Effective March 12, 2021, the Judicial Council approved the following changes to CALCRIM:

1.Revisions to CALCRIM 202, 222, 520, 591, 730, 763, 1140, 1151, 1193, 1202, 1820, 2044, 2520, 2521, 2522, 2624, 2651.
2.Adoption of new CALCRIM 768 and 1933.
3.Revocation of CALCRIM 3220.

https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-EFF5-4271-9F84-01B5C2D97B75

See CALCRIM Revisions for an overview and commentary on some of the changes.

Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.

 

Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with reckless indifference to human life.

 

In reliance on Banks and Clark CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.

 

As to reckless indifference CC 703, in reliance on Banks, instructs as follows:

 

…Among the factors you may consider are:

 

  • Did [sic] [Was] the present during the <insert underlying felony?
  • Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?
  • Did the defendant know that [a] lethal weapon[s] (was/were)used?
  • Did the defendant know the number of weapons involved?
  • Was the defendant near the person(s) killed when the killing occurred?
  • Did the defendant have an opportunity to stop the killing or to help the victim(s)?
  • How long did the crime last?
  • Was the defendant aware of anything that would make a coparticipant likely to kill?
  • Did the defendant try to minimize the possibility of violence?
  • <insert any other relevant factors>

 

As to major participant CC 703, in reliance on Clark, instructions as follows:

 

Among the factors you may consider are:

 

  • What was the defendant’s role in planning the crime that led to the death[s]?
  • What was the defendant’s role in supplying or using lethal weapons?
  • What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?
  • Was the defendant in a position to facilitate or to prevent the death ?
  • Did the defendant’s action or inaction play a role in the death?
  • What did the defendant do after lethal force was used?
  • <insert any other relevant factors.>

 

CC has brackets around each of the Banks and Clark factors and instructs that “{t]he trial court should determine whether the [Banks] [Clark] factors need be given.”

 

However, whether to instruct on specific factors is not necessarily an all-or-nothing choice. In some cases, certain factors may not be supported by the evidence.

 

For example, if there was no evidence presented as to whether or not the defendant was present during the felony, instruction on the presence factor might lead the jurors to speculate about whether or not he/she was present. Similarly, in the absence of evidence as to whether or not the defendant knew about, supplied or used a lethal weapon, instructing on the three lethal weapon factors could invite the jury to speculate that the defendant did know, supply or use a lethal weapon. Or, if the record does not provide any factual basis upon which to find whether or not the defendant had a role in planning the crime, instruction on that factor could encourage the jurors to conclude — based on nothing more than conjecture –that the defendant did indeed plan the crime. And, the same problem is likely to occur as to most of the other reckless indifference and major participant factors as to which no specific evidence was presented.

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence . . . .” ‘ ” (People v. Avila (2009) 46 Cal.4th 680, 704.) On the other hand, the court “has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ ” (People v. Saddler (1979) 24 Cal.3d 671, 681; see People v. Armstead (2002) 102 Cal.App.4th 784, 792.)

Accordingly, depending on the factual situation, counsel may wish to request, that inapplicable factors be deleted to avoid the dangers of juror confusion and/or speculation about that factor. To instruct the jurors on such inapplicable factors could confuse or mislead the jurors and/or encourage them to improperly speculate in violation of the principles set forth in Saddler et. al. (See also e.g., CC 375 [directing judge regarding list of purposes for which other crimes evidence was admitted as follows: “<Select specific grounds of relevance and delete all other options.>”]; see also CC 375 Instructional Duty: “The court must instruct the jury on what issue the evidence has been admitted to prove and delete reference to all other potential theories of relevance. [Citations]  Select the appropriate grounds from options A through H and delete all grounds that do not apply.”]. [Emphasis added to preceding citations].)

Alternatively, a limiting instruction could be requested. (See generally People v. Jennings (2000) 81 Cal.App.4th 1301, 1317-18 [recognizing “well-established rule that a court is obliged to give a limiting instruction upon a proper request…”]. ; cf., EC 355, “[w]hen evidence is admissible … for one purpose and is inadmissible … for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Italics added.)].)

While there is no precise CC instruction designed for this purpose, there are analogous instructions from other contexts which may provide templates for such an instruction. (See e.g., CC 763 re: listed factors in death penalty sentencing trial]:

Sample Instruction [adaption of CC 763, para 4 [death penalty factors; see also Bench Notes: [“The jury must be instructed to consider only those factors that are ‘applicable.’ (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023)”.]

          Consider, weigh, and be guided by these specific factors, where applicable.

Sample Instruction [Adaption from CJ 8.85, see also People v. Bonin (1988) 46 Cal.3d 659, 699]

You shall consider, take into account and be guided by [specified] factors, if applicable.

Sample Instruction [Adaption from CJ 8.85]

Only those factors which are applicable on the evidence adduced at trial are to be taken into account in the penalty determination. All factors may not be relevant and a factor which is not relevant to the evidence in a particular case should be disregarded.

Sample Instruction [Adaption of CC 200, para 1, re: deleted items in written instructions]:

 

          Disregard any factor as to which no evidence was presented and do not try to guess what any evidence as to that factor might have been.

Felony Murder Special Circumstance: Reckless Indifference — Discrete Knowledge Elements Should Be Separately Enumerated

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.)

“[T]he culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.’ [Citation] This mental state thus requires the defendant be “subjectively aware that his or her participation in the felony involved a grave risk of death. [Citation].” (People v. Mil (2012) 53 Cal.4th 400, 417; italics by Mil court; see also People v. Banks (2015) 61 Cal.4th 788, 807 [“Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a “grave risk of death” satisfies the constitutional minimum. [Citation]”].) Thus, reckless indifference requires that the defendant form two discrete knowledge elements when he engaged in the act(s) which aided and abetted the actual killer. (Whether or not a judge is required to instruct on these discrete elements, sua sponte

CALCRIM includes these discrete knowledge elements in a single-sentence definition of reckless indifference:

A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death. (CC 540B, CC 540C and CC 703) [The judge’s duty to instruct at all on this concept is discussed in this post.]  Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined

 

However, instead of merely including these elements in a single-sentence definition they should be separately enumerated. Also, the instruction should add language designed to address the issue of concurrence of act and intent/mental state. Otherwise, there is a danger that the jurors could improperly rely on a finding that the defendant did not form the required knowledge mental states until after the killing. Such a finding would not satisfy either PC 190.2(a) or Enmund/Tison which were obviously intended to require pre-killing awareness by the defendant. (See this post.) Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting
December 21st, 2020

 

 

Failing to clearly and expressly enumerate each discrete element in the body of the instructions to assure that the jurors will understand precisely what the prosecution must prove. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741 [Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition]; see also generally Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942.) This in turn violates the constitutional requirement that the prosecution prove every essential fact and element of the crime beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].)

 

Whether definition of reckless indifference is required sua sponte.

 

In reliance on People v. Estrada (1995) 11 Cal.4th 568, 578 the Bench Notes to CC 703 assert that there is no sua sponte duty to define reckless indifference.

However, this “holding should not be understood to discourage trial courts from amplifying the statutory language for the jury.” (Id. at p. 579.)

 

Sample Instruction       

 

  1. The defendant engaged in criminal activity;

 

  1. When he/she engaged in the criminal activity the defendant;

 

  1. Knew it was criminal

 

and

 

  1. Knew it involved a grave risk of death.

Are Jurors More Likely to Acquit Under CALCRIM than CALJIC?

The California Supreme Court permits criminal jurors to be instructed on the definition of proof beyond a reasonable doubt using either CALJIC 2.90 or CALCRIM 2.20.

 

California law imposes a duty on the trial court to instruct the jury in a criminal case on the presumption of innocence in favor of the defendant and the prosecution’s burden of           proving guilt beyond reasonable doubt. Specifically, Evidence Code section 502 requires a trial court to instruct the jury concerning which party bears the burden of proof on each issue, and the applicable standard of proof. The prosecution’s burden of proof in a criminal case is controlled by section 1096 of the Penal Code, the substance of which has, in turn, been incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90 and CALCRIM No. 220. Tracking the language of section 1096, the standard instructions describe the presumption of innocence and the requirement of proof beyond a reasonable doubt, and provide the legislatively approved definition of reasonable doubt. A court satisfies its statutory obligation to instruct on these principles by giving CALJIC No. 2.90 or CALCRIM No. 220. As section 1096a explains, “[i]n charging a jury, the court may read to the jury Section 1096, and no further instruction on the … presumption of innocence or defining reasonable doubt need be given.”

 

With respect to the principles that a defendant is accorded the presumption of innocence and the prosecution bears the burden of proving guilt beyond a reasonable doubt,           instruction with CALJIC No. 2.90 or CALCRIM No. 220 also satisfies the long-established rule requiring sua sponte instruction on “those principles closely and openly connected with the facts before the court, and … necessary for the jury’s understanding of the case.” [Citation.]

 

          People v. Aranda (2012) 55 Cal.4th 342, 352-54

 

However, notwithstanding this purported legal equivalence between  CJ 2.90 versus CJ 2.20, the linguistic structure of the two instructions differ substantially.

 

CJ 2.90 provides as follows:

 

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

 

CC 2.20 provides as follows:

 

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty. (See Cal. Rules of Court, rule 2.1050 [declaring the CALCRIM instructions the “official instructions” for Cal. criminal courts].)

 

However, even assuming the two instructions are legally equivalent one empirical study suggests that a criminal defendant is actually better off with CC 220 than with CJ 2.90. This study compared the CALJIC and CALCRIM instructions regarding reasonable doubt. It concluded that mock jurors who were instructed with the CALCRIM definition of reasonable doubt better understood that legal principle than those who received the CALJIC definition. And, as a result, the CALCRIM jurors  returned 73 not guilty verdicts while the CALJIC mock jurors only returned 57 not guilty verdicts. (See “An Empirical Comparison of the Old and Revised Jury Instructions of California: Do Jurors Comprehend Legal Ease Better or Does Bias Still Exist?” (Open Access Library Journal 2017, Volume 4, e3164, ISSN Online: 2333-9721, ISSN Print: 2333-9705.) In other words, the mock jurors instructed with the CALCRIM definition of reasonable doubt returned approximately 28% more not guilty verdicts than those instructed with the CALJIC definition.

 

 

This study is significant because some judges continue to give the CALJIC definition even though CALCRIM contains California’s official “official instructions.” (See e.g., . (See e.g., People v. Potts (2019) 6 Cal.5th 1012, 1033 [judge gave CJ 2.90]; see also People v. Martinez UNPUBLISHED (Feb. 16, 2021, B301401) [pp. 5]; People v. Rodriguez UNPUBLISHED (July 10, 2019, B280915) [pp. 50]; People v. Colin UNPUBLISHED (July 2, 2019, B286588) [pp. 18].) Hence, it  may be important to consider the findings of this empirical study when deciding whether or not to oppose a judge’s decision to use CALJIC instead of CALCRIM.. Alternatively, in light of Aranda counsel may wish to consider requesting the CALCRIM definition of reasonable doubt even if the remainder of the instructions are taken from CALJIC.

Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined

In reliance upon People v. Estrada (1995) 11 Cal.4th 568, 578 the CC states that the court does not have a sua sponte duty to define “reckless indifference to human life.”

 

Estrada concluded that there is no sua sponte duty as follows:

We disagree and find that, when considered in its entirety — as the phrase is presented to the jury — “reckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term “indifference,” referring to “the state of being indifferent,” is that which is “regarded as being of no significant importance or value.” (Webster’s New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard something, even to regard it as worthless, is to be aware of it. (See id. at p. 1911, col. 1 [“regard” is synonymous with “consider, evaluate, judge”].)

Although the term “reckless” — standing alone — may arguably be understood in common parlance to mean simply neglectful, heedless, or rash (see Webster’s New Internat. Dict., supra, at p. 1896, col. 1), when the word is placed in context within the statutory phrase “indifference to human life,” what is conveyed to the jury is more than mere negligence.

***

…[W]e conclude the generally accepted meaning of the phrase, “reckless indifference to human life,” in common parlance amply conveys to the jury the requirement of a defendant’s subjective awareness of the grave risk to human life created by his or her participation in the underlying felony. This is the meaning intended by the phrase “reckless indifference to human life” as it is used in section 190.2(d), and as defined in Tison. The phrase therefore does not have a technical meaning peculiar to the law, and the trial court had no sua sponte duty to further define the statutory phrase for the jury.

(Estrada, 11 Cal.4th at 577-79; see also Banks , supra , 61 Cal.4th at pp. 798, 801, 804 [citing Estrada approvingly … without questioning its holding that the reckless indifference language of section 190.2, subdivision (d) is adequate to apprise the jury of what is required and is not unconstitutionally vague.]; People v. Price (2017) 8 Cal.App.5th 409, 450-51[same].)

However, there is a fundamental flaw in Estrada’s analysis. The court never explained why lay persons would necessarily conclude that the risk created must be “grave” as opposed to other degrees of risk such as “possible” or “feasible.” Certainly, “common parlance” would not preclude jurors from concluding that a reckless act which creates a “possible risk of death” would constitute reckless indifference to human life.

Accordingly, notwithstanding Estrada’s analysis to the contrary, the jury should always be instructed on the definition of reckless indifference with specific reference to the required subjective knowledge elements in every appropriate case. Otherwise, there can be no assurance — without relying on the dubious assumption that lay jurors are “walking dictionaries.” See F 101.5 Inst 1 (a-c) Jurors Are Not Walking Dictionaries; see also F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term.

 

See also, this post Overcoming the “Walking Dictionary Myth” When Instructing the Jury

 

Moreover, Estrada did hold that “in appropriate cases, a clarifying instruction must be given on request. [Citations].” (Estrada, 11 Cal.4th at 579; emphasis added.)

 

Sample Instruction

 

To find that the defendant acted with reckless indifference to human life you must find all of the following elements beyond a reasonable doubt:     

 

  1. The defendant engaged in criminal activity;

 

  1. When he/she engaged in the criminal activity the defendant;

 

  1. Knew it was criminal

 

and

 

  1. Knew it involved a grave risk of death.

Overcoming the “Walking Dictionary Myth” When Instructing the Jury

Jury instruction jurisprudence attempts to draw a “bright line” distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning.

On one side of this “bright line” the trial judge must sua sponte define terms which have a “technical meaning peculiar to the law.” (See People v. Krebs (2019) 8 Cal.5th 265, 331-32 [citing and quoting People v. Howard (1988) 44 Cal.3d 375, 408.)

On the other side of the line courts hold that the judge has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request when a word or phrase used in the instructions given “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law.” (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; see also (People v. Estrada (1995) 11 Cal.4th 568, 574 [no duty to define term which is “common parlance”].)

Furthermore, it is actually misconduct for a juror to consult a dictionary to ascertain the common meaning terms he or she does not fully understand. (See Glage v. Hawes Firearms Co.(1990) 226 Cal.App.3d 314, 323 and cases cited therein.

Thus, the case law is founded on a fundamentally false assumption: that jurors are “walking dictionaries” who — off the tops of their heads — will be able to accurately and precisely understand every ordinary-usage or common-parlance instructional term. We know this assumption is false through our own common experience and as demonstrated by actual juries who have resorted to the dictionary for definition of instructional terms. (See e.g., People v. Karis (1988) 46 Cal.3d 612, 642; U.S. v. Gillespie (6th Cir. 1995) 61 F.3d 457, 459; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 A.2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 S.E.2d 395, 400; cf., People v. Landwer (IL 1996) 664 N.E.2d 677, 682 [error to refuse jury’s request for dictionary].)

This “walking dictionary myth” undermines the reliability of the jury system by failing to assure that the jurors fully understand the instructions.

As a result, some courts have declined to assume that jurors are walking dictionaries.

For example, in People v. Billings (1981) 124 Cal.App.3d 422, 433, the judge granted the jury’s request for a dictionary after each side consented. However, in Karis the Supreme Court explained that “[u]se of a dictionary to obtain further understanding of the court’s instructions poses a risk that the jury will misunderstand the meaning of terms which have a technical or unique usage in the law.” (46 Cal.3d at 642.) And, the Court further stated that “[t]o the extent that this conclusion is inconsistent with that reached here, Billings is disapproved.” (Id at 643, fn 22.)

More importantly, the cases do not preclude a judge from instructing, sua sponte or upon request, on the dictionary definition of non-technical terms used in the instructions. (See People v. Krebs supra 8 Cal.5th 265, 331-32 [no sua sponte duty to so instruction]; see also People v. Whitlock (2003) 113 Cal.App.4th 456, 462 [” ‘To ascertain the common meaning of a word, ‘a court typically looks to dictionaries.’ [Citation.]”].) Hence, it typically is not error for the judge to instruct the jury with the dictionary definition of a term used in the instructions. For example, in People v. Lucero (2000) 23 Cal.4th 692, the court responded to a jury request for definition of a term used in the instructions by giving a dictionary definition of the term. The CSC rejected the defendant’s argument that doing so was error. (Id. at pp. 723-725; see also People v. Davison (1995) 32 Cal.App.4th 206, 212 fn. 3 [judge gave dictionary definition in response to jury request for a dictionary]; Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [because the term guard is not a specific legal term of art, judge properly provided the jury with a dictionary definition of the term]; People v. Hernandez (1991) 231 Cal.App.3d 1376, 1383-84 [jury was correctly instructed with the common dictionary definition of “obscene”].)

Nor is it misconduct for counsel to provide the jurors with correct dictionary definitions of common terms during closing arguments. For example, in People v. Cunningham (2001) 25 Cal. 4th 926, 1000 there was no misconduct when the prosecutor, during closing argument, presented the jury with three definitions of the term “conscious” from a dictionary. (See also generally CC 200 and CC 761: “You must follow the law as I explained it to you even if you disagree with it. If you believe the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”].)

In sum, without instructional clarification jurors are put in an untenable situation by the jurisprudential myth that they are “walking dictionaries.” Not only are jurors unrealistically expected to know the correct dictionary definitions of every undefined instructional term, but they are expressly prohibited from consulting the most logical place to find the meaning of a common word or phrase–the dictionary.

 

Accordingly, counsel should have the right to either:

 

  1. Request that the judge include a dictionary definition of certain terms in his or her instructions to the jury, or
  2. Include a dictionary definition of the term at issue in closing argument and request an instruction such as the sample below. (See also F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term)

 

Sample Instruction

 

If counsel provides you with a definition of a term used in these instructions, you may rely on that definition unless it conflicts with the instructions or I sustain an objection to counsel’s definition.

Felony Murder: Uncharged Predicate Felony Must Still be Proved Beyond a Reasonable Doubt

PRACTICE NOTE: When a defendant is charged with a felony murder but not the predicate underlying felony, “there is a requirement of proof beyond a reasonable doubt of the underlying felony” (People v. Hart (1999) 20 Cal.4th 546, 609) and “…the defendant is entitled, upon request, to a specific instruction on the necessity of proving the underlying felony beyond a reasonable doubt even though a general instruction on reasonable doubt has been given.[Citations].” (People v. Whitehorn (1963) 60 Cal.2d 256, 264; see also People v. Berryman (1993) 6 Cal.4th 1048, 1085; People v. Granados (1957) 49 Cal.2d 490, 495-96; People v. Huynh (2013) 212 Cal.App.4th 285, 306 [“The elements of the particular felony must be proved and the defendant is entitled, on request, to a specific instruction on the necessity of proving the underlying felony beyond a reasonable doubt. [Citation]”].)

 

Furthermore, a defense to the underlying felony is also a defense to the felony murder allegation. Therefore, instruction upon such defenses should be given. For example, it has been held that the court should instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.” People v Mickey (1991) 54 C3d 612, 675-77 [felony murder charged as death eligibility special circumstance].)

Error to Imply That Juror Notes Are per se Less Accurate than Reporter’s

It is well established that the jurors have a right to request readback of testimony during their deliberations. (See e.g., People v. Triplett (2020) 48 Cal.App.5th 655, 662 [If the jury requests transcripts, the court should remind the jury of the right to request readback and to advise the court whether there is any testimony they want read].)

 

The final paragraphs of CC 104, 202, and CC 222 advise the jurors of their right to request a readback of testimony with the admonition that “you must accept the (court reporter’s record/court’s recording)as accurate.”

However, there is no legal basis for requiring a juror to accept the court reporter’s notes over the juror’s own recollection and/or notes. (See e.g., People v. Smith (2005) 135 CA4th 914, 925 [assuming juror notes were “accurate”].) To the contrary, the cases and Rules of Court recognize the fallibility of the court reporter’s record by providing comprehensive procedures to correct it. (See e.g., Calif. Rules of Court Rule 35.2 [Certifying The Trial Record For Accuracy]; People v. Huggins (2006) 38 C4th 175, 191 [“punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed …”]; People v. Coley (1997) 52 CA4th 964, 972; People v. Williams (1994) 30 CA4th 1758, 1764-65 [court reporter’s transcription of oral instructions is not an adequate substitute for copies of the written instructions]; Little v. U.S. (10th Cir. 1934) 73 F2d 861, 864 [recognizing the reality that the reporter may make “a mistake in the reading of … shorthand symbol[s] …”] see also Anne Graffam Walker, Language at Work in the Law: The Customs, Conventions, and Appellate Consequences of Court Reporting, in LANGUAGE IN THE JUDICIAL PROCESS (Judith N. Levi & Anne Graffam Walker eds., 1990) at page 203.)

Therefore, the jurors should be free to rely on their own recollection of the testimony even if it conflicts with the reporter’s notes.

Drunk Driving Is Not an LIO of Gross Vehicular Manslaughter

The defendant in People v. Machuca (2020) 49 Cal.App.5th 393, 397 contended that his drunk driving convictions should be dismissed because VC 23153 (drunk driving) is a lesser included offense of gross vehicular manslaughter while intoxicated (PC 191.5, subd. (a)) when the offenses arise from a single incident. The reviewing court rejected this argument because this case involved separate victims.

Felony Murder Special Circumstance: “Actual Killer” Determination — CALCRIM 703 Misstates the Burden of Proof

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):

  1. The defendant was the actual killer of the victim; or
  2. The defendant acted with intent to kill; or
  3. The defendant aided and abetted the murder with:
  4. Reckless indifference to human life and
  5. As a major participant in the crime.

(See Tison v. Arizona (1987) 481 U.S. 137; Enmund v. Florida (1982) 458 U.S. 782; People v. Estrada (1995) 11 Cal.4th 568, 575-576.)

To obtain a true finding on a felony murder special circumstance allegation the prosecution is required to prove one of these options beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 686 fn. 36 [jury properly instructed that “The People have the burden of proving the truth of the special circumstances.”]; see also Ring v. Arizona (2002) 536 U.S. 584, 609; Apprendi v. New Jersey (2000) 530 US 466; CC 700.)

However, CC 703 fails to expressly set for the prosecution’s burden of proof as to the “actual killer” option. In fact, the only reference to the “actual killer” option is the following obtuse reference in the first sentence of the instruction:

If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of <insert felony murder special circumstance[s]>, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.

At best this language is ambiguous and confusing because it seemingly applies to the substantive finding of first degree finding and not the determination of special circumstance liability. And, there is nothing in the standard substantive felony murder instructions which requires the prosecution to prove the defendant was the actual killer. To the contrary, the vicarious liability instructions on felony and conspiracy expressly apply to non-killers. Thus, the CALCRIM instructions completely omit any direct language — in the guilt or special circumstance instructions — that requires the prosecution to prove that the defendant was the actual killer.

Moreover, the one reference to the “actual killer” element in CC 703 suggests — by implying that the jury must decide if the defendant was “not the actual killer” — that the defendant was obligated to prove that (he/she) was not the actual killer which would unconstitutional shift the burden of proof to the defense. (But see CC 700 [generally instructing that prosecution must prove all special circumstance allegations; cf., People v. Covarrubias (2016) 1 Cal.5th 838, 829, 932 [burden not shifted where other instructions properly explained actual killer option: ” ‘if you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.’ ” People v. Covarrubias (2016) 1 Cal.5th 838, 929; italics in original.].)

In any event, whether unconstitutional or only potentially confusing, CC 703 should be modified to plainly set forth the three option for felony murder special circumstance liability.

Sample Instruction [People v. Covarrubias (2016) 1 Cal.5th 838, 932]

If you find beyond a reasonable doubt that defendant was the actual killer, then you are not required to find intent to kill or reckless indifference. Otherwise, if you cannot find beyond a reasonable doubt that defendant was the actual killer, then you are required to make a finding regarding whether the prosecution has proved beyond a reasonable doubt intent to kill or reckless indifference as a major participant.

Sample Instruction [Modification of CC 703]:

If you decide that (the/a) defendant is guilty of first degree murder then you must consider the special circumstance[s] allegation[s]. In order to prove the felony murder special circumstance, the must prove must each of the following beyond a reasonable doubt:

 

  1. The defendant personally killed ________________[name of victim];

          OR   

  1. Before or during the killing the defendant intended ________________[name of victim] be killed;

          OR

  1. The defendant
  2. Knowingly engaged in criminal activity;
  3. The defendant’s participation in the crime/[__________e.g., robbery] began before or during the killing;
  4. The defendant was a major participant in the crime/[__________e.g., robbery].

          AND

  1. When the defendant participated in the crime/[__________e.g., robbery], (he/she) knew it involved a grave risk of death;

Sample Instruction [Adaption of CC 702]

If the prosecution has proved the guilty of first degree murder and that the defendant was the actual killer then this alone is sufficient for you to find this special circumstance is true. However, if you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find the felony murder special circumstance true, you must find that the defendant acted with the intent to kill or acted with reckless indifference as a major participant in the crime.

 

If the People have not met this burden, you must find this special circumstance has not been proved true.