Felony Murder Special Circumstance: Any One Tison May, by Itself, Leave the Jurors with A Reasonable Doubt
December 23rd, 2020

CC 703 includes the following caveat regarding the specific factors listed for the jury’s consideration as to the reckless indifference and major participant allegations:

 

No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant [acted with reckless indifference to human life] [was a major participant.]

 

This caveat — by focusing only on whether any one factor is necessary or sufficient to “determine”  the reckless indifference and major participant allegations of CC 703 — only tells half the story. This is so because it fails to tell the jury that any one factor may be — “by itself” — sufficient to leave the jurors with a reasonable doubt that the allegations have been proved by the prosecution.

The presumption of innocence by itself is sufficient to leave the jurors with a reasonable doubt. (See FORECITE F 100.1 Inst 1.) Similarly, a lack of evidence or conflict in the evidence may also be a basis for finding the defendant not guilty. (See e.g., People v. Hill (98) 17 C4th 800, 831 […[T]o the extent [the DA] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence]; see also FORECITE F 103.3 Inst 2; F 103.3 Inst 5.) It follows, a fortiori, that any single defensive fact may alone be sufficient for the jurors to have a reasonable doubt.

 

In other words, the presumption of innocence logically permits the jury to rely entirely upon a single defense theory to generate a reasonable doubt. (People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; see also e.g., CC 350; CJ 2.40.)

 

Accordingly, CC 703 should be modified to state the basic rule that a reasonable doubt as to the major participant and/or reckless indifference allegations can be entirely upon any one of the factors listed in CC 703.

 

          Sample Instructions: Modify the following paragraphs in CC 703 to read as follows [added language is highlighted]:

 

When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of these following factors is necessary nor is any one of them necessarily enough, to determine whether the defendant was a major participant. However, any one of the above factors may be sufficient, by itself, to leave you with a reasonable that defendant acted with reckless indifference to human life. Among the factors you may consider are:

 

*****

 

When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary nor is any one of them necessarily enough, to determine whether the defendant was a major participant. However, any one of the above factors may be sufficient, by itself, to leave you with a reasonable that defendant was a major participant. Among the factors you may consider are:


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