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):
- The defendant was the actual killer of the victim; or
- The defendant acted with intent to kill; or
- The defendant aided and abetted the murder with:
- Reckless indifference to human life and
- 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:
- The defendant personally killed ________________[name of victim];
- Before or during the killing the defendant intended ________________[name of victim] be killed;
- The defendant
- Knowingly engaged in criminal activity;
- The defendant’s participation in the crime/[__________e.g., robbery] began before or during the killing;
- The defendant was a major participant in the crime/[__________e.g., robbery].
- 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.