Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined
March 22nd, 2021

In reliance upon People v. Estrada (1995) 11 Cal.4th 568, 578 the CC states that the court does not have a sua sponte duty to define “reckless indifference to human life.”


Estrada concluded that there is no sua sponte duty as follows:

We disagree and find that, when considered in its entirety — as the phrase is presented to the jury — “reckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term “indifference,” referring to “the state of being indifferent,” is that which is “regarded as being of no significant importance or value.” (Webster’s New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard something, even to regard it as worthless, is to be aware of it. (See id. at p. 1911, col. 1 [“regard” is synonymous with “consider, evaluate, judge”].)

Although the term “reckless” — standing alone — may arguably be understood in common parlance to mean simply neglectful, heedless, or rash (see Webster’s New Internat. Dict., supra, at p. 1896, col. 1), when the word is placed in context within the statutory phrase “indifference to human life,” what is conveyed to the jury is more than mere negligence.


…[W]e conclude the generally accepted meaning of the phrase, “reckless indifference to human life,” in common parlance amply conveys to the jury the requirement of a defendant’s subjective awareness of the grave risk to human life created by his or her participation in the underlying felony. This is the meaning intended by the phrase “reckless indifference to human life” as it is used in section 190.2(d), and as defined in Tison. The phrase therefore does not have a technical meaning peculiar to the law, and the trial court had no sua sponte duty to further define the statutory phrase for the jury.

(Estrada, 11 Cal.4th at 577-79; see also Banks , supra , 61 Cal.4th at pp. 798, 801, 804 [citing Estrada approvingly … without questioning its holding that the reckless indifference language of section 190.2, subdivision (d) is adequate to apprise the jury of what is required and is not unconstitutionally vague.]; People v. Price (2017) 8 Cal.App.5th 409, 450-51[same].)

However, there is a fundamental flaw in Estrada’s analysis. The court never explained why lay persons would necessarily conclude that the risk created must be “grave” as opposed to other degrees of risk such as “possible” or “feasible.” Certainly, “common parlance” would not preclude jurors from concluding that a reckless act which creates a “possible risk of death” would constitute reckless indifference to human life.

Accordingly, notwithstanding Estrada’s analysis to the contrary, the jury should always be instructed on the definition of reckless indifference with specific reference to the required subjective knowledge elements in every appropriate case. Otherwise, there can be no assurance — without relying on the dubious assumption that lay jurors are “walking dictionaries.” See F 101.5 Inst 1 (a-c) Jurors Are Not Walking Dictionaries; see also F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term.


See also, this post Overcoming the “Walking Dictionary Myth” When Instructing the Jury


Moreover, Estrada did hold that “in appropriate cases, a clarifying instruction must be given on request. [Citations].” (Estrada, 11 Cal.4th at 579; emphasis added.)


Sample Instruction


To find that the defendant acted with reckless indifference to human life you must find all of the following elements 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.

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