People v. Clark (2016) 63 Cal.4th 522, 614-620 identified certain factors to guide the jury in its determination of whether the defendant acted with reckless indifference to human life but did not hold that the court has a sua sponte duty to instruct on those factors. Clark noted that these factors had been applied by appellate courts “in cases involving nonshooter aiders and abettors to commercial armed robbery felony murders.” (Id. at p. 618.)
Instruction on the Clark factors, especially if requested, may be appropriate. (Of course, the jury should also be cautioned that no one factor is necessary or determinative.) For example,
Among the factors you may consider are the following:
Did the defendant know that [a] lethal weapon[s] would be 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?
Any other relevant factor.