Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors
April 13th, 2021

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.


Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with reckless indifference to human life.


In reliance on Banks and Clark 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, in reliance on Banks, instructs as follows:


…Among the factors you may consider are:


  • 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?
  • <insert any other relevant factors>


As to major participant CC 703, in reliance on Clark, instructions as follows:


Among the factors you may consider are:


  • 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?
  • <insert any other relevant factors.>


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, whether to instruct on specific factors is not necessarily an all-or-nothing choice. In some cases, certain factors may not be supported by the evidence.


For example, if there was no evidence presented as to whether or not the defendant was present during the felony, instruction on the presence factor might lead the jurors to speculate about whether or not he/she was present. Similarly, in the absence of evidence as to whether or not the defendant knew about, supplied or used a lethal weapon, instructing on the three lethal weapon factors could invite the jury to speculate that the defendant did know, supply or use a lethal weapon. Or, if the record does not provide any factual basis upon which to find whether or not the defendant had a role in planning the crime, instruction on that factor could encourage the jurors to conclude — based on nothing more than conjecture –that the defendant did indeed plan the crime. And, the same problem is likely to occur as to most of the other reckless indifference and major participant factors as to which no specific evidence was presented.

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence . . . .” ‘ ” (People v. Avila (2009) 46 Cal.4th 680, 704.) 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.’ ” (People v. Saddler (1979) 24 Cal.3d 671, 681; see People v. Armstead (2002) 102 Cal.App.4th 784, 792.)

Accordingly, depending on the factual situation, counsel may wish to request, that inapplicable factors be deleted to avoid the dangers of juror confusion and/or speculation about that factor. To instruct the jurors on such inapplicable factors could confuse or mislead the jurors and/or encourage them to improperly speculate in violation of the principles set forth in Saddler et. al. (See also 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.”]. [Emphasis added to preceding citations].)

Alternatively, a limiting instruction could 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…”]. ; cf., EC 355, “[w]hen evidence is admissible … for one purpose and is inadmissible … for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Italics added.)].)

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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