Felony Murder Special Circumstance: Reckless Indifference — Discrete Knowledge Elements Should Be Separately Enumerated
April 6th, 2021

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]”].) 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. (Whether or not a judge is required to instruct on these discrete elements, sua sponte

CALCRIM includes these discrete knowledge elements in a single-sentence definition of reckless indifference:

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. (CC 540B, CC 540C and CC 703) [The judge’s duty to instruct at all on this concept is discussed in this post.]  Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined


However, instead of merely including these elements in a single-sentence definition they should be separately enumerated. Also, the instruction should add language designed to address the issue of concurrence of act and intent/mental state. Otherwise, there is a danger that the jurors could improperly rely on a finding that the defendant did not form the required knowledge mental states until after the killing. Such a finding would not satisfy either PC 190.2(a) or Enmund/Tison which were obviously intended to require pre-killing awareness by the defendant. (See this post.) Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting
December 21st, 2020



Failing to clearly and expressly enumerate each discrete element in the body of the instructions to assure that the jurors will understand precisely what the prosecution must prove. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741 [Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition]; see also generally Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942.) This in turn violates the constitutional requirement that the prosecution prove every essential fact and element of the crime beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].)


Whether definition of reckless indifference is required sua sponte.


In reliance on People v. Estrada (1995) 11 Cal.4th 568, 578 the Bench Notes to CC 703 assert that there is no sua sponte duty to define reckless indifference.

However, this “holding should not be understood to discourage trial courts from amplifying the statutory language for the jury.” (Id. at p. 579.)


Sample Instruction       


  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.

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