Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Intoxication
September 12th, 2020

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.)

“[T]he culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.’ ” [Citation] This mental state thus requires the defendant be “subjectively aware that his or her participation in the felony involved a grave risk of death.” [Citation], People v. Mil (2012) 53 Cal.4th 400, 417; italics by Mil court; see also People v. Banks (2015) 61 Cal.4th 788, 807 [“Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a “grave risk of death” satisfies the constitutional minimum. [Citation]”].)

CC 540B, CC 540C and CC 703 define reckless indifference as follows:

A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a       grave risk of death.

Thus, reckless indifference requires that the defendant form two discrete knowledge elements when he engaged in the act(s) which aided and abetted the actual killer: (1) knowingly engaged in criminal and (2) knew the criminal activity involved a grave risk of death.

Intoxication can negate either or both of these knowledge elements because they constitute additional required mental state findings for a charge based on aiding and abetting murder.

The Bench Notes to CC 3426 state: “Although voluntary intoxication is not an affirmative defense to a crime, the jury may consider evidence of voluntary

intoxication and its effect on the defendant’s required mental state. [Citations.]”

(But compare People v. Reyes (1997) 52 Cal.App.4th 975, 985 with People v. Berg (2018) 23 Cal.App.5th 959, 969.)

Moreover, aiding and abetting is a specific intent crime and, therefore, the “reckless indifference” mental state required for the felony murder special circumstance as to a defendant who neither killed nor intended to kill is “closely akin” to the kind of specific intent which mental impairment may negate. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1131[“although knowledge ‘may not fall literally within the Hood formulation of specific intent, the element [of aiding and abetting liability] that requires that the defendant act with knowledge of [the perpetrator’s criminal intent] is closely akin to Hood‘s definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.’ [Citation].”].) As with substantive felony murder, special circumstance felony murder requires the jury to find that the defendant aided and abetted with additional knowledge elements. Under the rational of Mendoza these added knowledge elements can be negated by intoxication.

Accordingly, CC 625 and CC 3428 should be appropriated tailored in light of evidence that the defendant was intoxicated.

Alternatively, a defense theory on this issue may be requested. (See F 3300.)

Sample Instruction [CC 3400 adaption]:

To find that the acted with reckless disregard for human life you must conclude that the prosecution has proved the following beyond a reasonable doubt:


  1. The defendant engaged in criminal activity;


  1. When he/she engaged in the criminal activity the defendant;


  1. Knew it was criminal




  1. Knew it involved a grave risk of death.


The defendant contends that he/she did not have either or both of the above knowledge elements due, in whole or part, to his/her intoxication. However, the defendant does not need to prove (he/she) was intoxicated. If, after considering all the circumstances, including any evidence of the defendant’s intoxication, you have a reasonable doubt about whether the defendant formed both of these knowledge elements, you must find (him/her) not guilty.

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