CC 703 invites the jurors to consider the defendant’s actions after the crime in determining the “reckless indifference” by telling the jurors that they may consider the following specific factor: “Did the defendant have an opportunity … to help the victim(s)?”
However, the defendant’s post-crime actions are not alone sufficient to prove reckless indifference. “…[A] defendant’s actions after a murder betraying an indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death.” [Emphasis original.] Defendant made no attempt to render aid to the victim his co-defendant had shot, and the next day made an offensively callous remark about the victim. “Because there is no other evidence that Taylor had such an intent when he participated in the attempted robbery, we grant his petition to vacate the special circumstance.” (In re Taylor (2019) 34 Cal. App. 5th 543, 546-47.) See also Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime
Therefore, as with other situations where a category of evidence is not alone sufficient (e.g, flight, recent possession of stolen property, etc.), a cautionary instruction may be appropriate. The California Supreme Court has repeatedly approved instructions which admonish the jury that specific forms of consciousness of guilt, such as flight, false statements, destruction of evidence, etc., are not alone sufficient to prove guilt. (See e.g., People v. Holloway (2004) 33 C4th 96, 142; see also People v. Jenkins (1979) 91 CA3d 579 [evidence of falsehoods, attempts to fabricate evidence, and efforts to suppress evidence are, in themselves, sufficient to establish guilt].) Similarly, the legislature and CALCRIM instructions provide for such cautionary language. (See e.g., PC 1127c; CALCRIM 362, CC 371, CC 373.)
Sample Instruction [CC 376 format]:
If you conclude that the defendant [insert alleged post-crime actions of defendant, e.g., fled after the crime; failed to render assistance to [the victim] [________[insert name of victim], you may not find that the defendant acted with reckless indifference to human life based on [those facts] [that fact] alone. You may also consider any other evidence but remember that you may not find that the defendant acted with reckless indifference to human life, that is, the defendant knowingly created a grave risk of death, unless you are convinced that each fact essential to that conclusion has been proved beyond a reasonable doubt.
Sample Instruction [CC 362, CC 371, CC 373 format]:
If you conclude that the defendant [insert alleged post-crime actions of defendant, e.g., fled after the crime; failed to render assistance to [the victim] [________[insert name of victim], it is up to you to decide its meaning and importance. However, such evidence cannot prove reckless indifference to human life, that is, awareness of a grave risk of death, by itself.