PC 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137 [95 L. Ed. 2d 127, 107 S. Ct. 1676], “which articulates the constitutional limits on executing felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal. 4th 788, 794.) “Tison and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782 [73 L. Ed. 2d 1140, 102 S. Ct. 3368], collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions. Section 190.2(d) must be accorded the same meaning.” [Emphasis added.] (Banks, supra.)
Banks described the nature of this spectrum by explaining that Enmund and Tison do not establish maximum and minimum limits of death eligibility:
The actions of Earl Enmund, the Tison brothers, and countless other nonkiller felony murderers fall on a continuum, a spectrum of culpability. To ask whether there is any variation at all between Matthews’s conduct and Enmund’s is certainly relevant, but in doing so we do not simply assume Enmund’s conduct represents a constitutional maximum, i.e., the most culpable one can be and yet still be constitutionally ineligible for death, such that any variation would move one into the death-eligible zone. Nationally, thousands of armed robberies occur each year; per Enmund, only roughly 1 in 200 results in death. (Enmund v. Florida, supra, 458 U.S. at p. 800, fn. 24.) If Enmund’s actions represented the outer limit of conduct immune from death eligibility, Tison would have been an easy case. It was not. We do not view Enmund as defining a maximum for ineligibility for the death penalty, any more than we view the egregious actions of the Tison brothers as a constitutional minimum level of culpability for death eligibility.
(Banks, 61 C4th at 811.)
Banks discussed the factors relevant to where a particular defendant falls on the spectrum as follows:
“Among those factors that distinguish the Tisons from Enmund, and thus may play a role in determining whether a defendant’s culpability is sufficient to make him or her death eligible, are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation “in criminal activities known to carry a grave risk of death” [citation] was sufficiently significant to be considered “major” [Citations.].”
(Banks, 61 C 4th at 803.)
In light of Banks the CALCRIM Committee added the following language to CC 703:
[When you decide whether the defendant was a major participant,consider all the evidence. Among the factors you may consider are:
- What role did the defendant play in planning the criminal enterprise that led to the death[s]?
2. What role did the defendant play in supplying or using lethal weapons?
3. What awareness did the defendant have of particular dangers posed by the nature of the crime, any weapons used, or past experience or conduct of the other participant[s]?
4. Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder?
5. Did the defendant’s own actions or inactions play a particular role in the death?
6. What did the defendant do after lethal force was used?
[7._____________________<insert any other relevant factors.>]
No one of these factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant.