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, to “act with” reckless indifference requires that the defendant form two discrete knowledge elements before he or she engaged in the criminal activity which created a grave risk of death.
Moreover, it is a “fundamental doctrine of criminal law” that in every crime there must be a concurrence of act and intent. (PC 20; People v. Green (1980) 27 C3d 1, 53.) “The scienter for any crime is inextricably linked to the proscribed act or omission. [Citation to PC 20].” (People v. Sargent (1999) 19 C4th 1206, 1222.) “So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.” (fn. omitted) (People v. Vogel (1956) 46 C2d 798, 801; see also Green at 53.)
Concurrence of act and intent is an element of the felony murder special circumstance for two reasons. First, as discussed above the statute expressly requires such an element by requiring that the defendant “act with” reckless indifference. Second, even if characterized as a sentencing enhancement all necessary elements must still be found by the jury. (Apprendi v. New Jersey (2000) 530 US 466.) Third, not only does the special circumstance enhance the defendant’s sentencing exposure, if found true it makes the defendant death-eligible which also requires a jury finding as to each element of the allegation. (Ring v. Arizona (2002) 536 U.S. 584, 609.)
CAVEAT. The jurors are not necessarily precluded from considering post-killing evidence regarding the defendant’s pre-killing mental state. However, post-killing knowledge is not a substitute for the required pre-act knowledge.
See Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime
Sample Instruction 1 [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:
- The defendant engaged in criminal activity;
- When he/she engaged in the criminal activity the defendant;
- Knew it was criminal
and
- 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 before or during his alleged commission of criminal activity involving a grave risk of death.
If you have a reasonable doubt, or cannot decide whether you have a reasonable doubt, that the defendant formed both of the above knowledge elements, you must find that the special circumstantial allegation is untrue.
Sample Instruction 2 [CC 3400 adaption]:
Before you return a true verdict on the felony murder special circumstance one element you must find is that the defendant knowingly
The defendant contends that he/she did not know that his acts involved a grave risk of death before or during his commission of those acts.
Defendant does not need to prove this contention. The prosecution must disprove it beyond a reasonable doubt. If [the prosecution has failed to meet this burden] [you have a reasonable doubt or cannot decide whether you have a reasonable doubt that defendant knew his acts involved a grave risk of death prior or during the commission of those acts,] you must find the special circumstance allegation to be untrue.
Sample Instruction 3:
The prosecution has the burden of proving beyond a reasonable doubt that the defendant knew his/her [alleged] acts involved a grave risk of death when he committed those [alleged] acts. If you conclude that the prosecution has failed meet this burden, or you are uncertain that they have done so, you must find the special circumstance allegation to be untrue.
Sample 4 [re: post killing acts (In re Taylor (2019) 34 Cal. App. 5th 543, 546-47)]:
Evidence of a defendant’s actions after the murder which the prosecution alleges as evidence of the defendant’s indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death.
