Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence
May 4th, 2021

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 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 includes the following factors for the jury to “consider” —


  • 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?


As to reckless indifference CC 703 includes the following factors for the jury to “consider” —


  • 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?


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, it isn’t that simple because in many cases some factors will be supported by substantial evidence and others will not. In such situations the judge should delete the unsupported factor or factors:


The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence … [citation].) 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.’ [citation].” (People v. Saddler (1979) 24 Cal.3d 671, 681; see People v. Armstead (2002) 102 Cal.App.4th 784, 792.) “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [Citatiion]).” (People v. Hannon (1977) 19 Cal.3d 588, 597.)

Accordingly, to instruct the jurors on inapplicable factors listed in CC 703 could lead them to improperly speculate in violation of the principles set forth in Saddler et. al.


In light of this danger in other contexts CALCRIM has admonished that the jurors should not be instructed on factually unsupported factors (See 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.”]; CC 763 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).”

Alternatively, a limiting instruction may 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…”] 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.

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