Felony Murder Special Circumstance: When Appropriate Tison/Banks Factors Should Include Defendant’s Absence During the Killing
April 20th, 2021

The cases have repeated explained that the defendant’s presence during the killing is an important factor to consider as to both the major participant and reckless indifference elements of culpability as to a defendant who did not kill and was not an actual killer.


In Tison, the high court stressed the importance of presence to culpability. Each Tison brother was physically present during the entire sequence of events culminating in the murders. (Tison v. Arizona (1987) 481 U.S. 137, 158.)


In People v. Banks (2015) 61 Cal.4th 788, 803 the California Supreme Court articulated several factors to aid in determining whether a defendant who lacked the intent to kill may qualify as a major participant for purposes of a special circumstance finding. These factors consist of the following: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Ibid., fn. omitted; emphasis added.)

In assessing the defendant’s mens rea, the court in People v. Clark (2016) 63 Cal.4th 522 restated and applied a version of the factors enumerated in Banks, including (1) a defendant’s knowledge that weapons would be used; (2) his physical presence at the crime and his opportunity to restrain his accomplices or aid the victim; (3) the duration of the felony (a longer period of restraint often providing a greater window of opportunity for violence); and (4) the defendant’s knowledge of his cohorts’ likelihood of killing. (Clark, supra, 63 Cal.4th at pp. 618-621, emphasis added.) Additionally, as a matter of first impression, the court considered the defendant’s efforts to minimize the risk of violence in the commission of the felony, concluding such evidence “can be relevant to the reckless indifference to human life analysis” though it would not “in itself, necessarily foreclose” such a finding. (Id. at pp. 621-622.)


However, the CALCRIM instructions on the Banks/Clark factors (CC 540B, CC 540C) omit any express reference to whether or not the defendant was present during the killing.


The first reckless indifference factor in CC 703 does contain the following garbled language: “[Did the present during the <insert underlying felony]” and the reckless indifference factors include the following:


[• Was the defendant near the person(s) killed when the killing occurred?]

[• Did the defendant have an opportunity to stop the killing or to help the victim(s)?]


The major participant factors include the following:


[• Was the defendant in a position to facilitate or to prevent the death?]

[• Did the defendant’s action or inaction play a role in the death?]


Nevertheless, there is no instructional factor which specifically enumerates the defendant’s lack of presence as a relevant factor.


Therefore, when the defendant was not present during the killing (e.g., defendant was a lookout or getaway driver) the CALCRIM factors for both reckless indifference and major participant should be modified to include reference to the defendant’s absence during the killing.


Moreover, CC 540B and CC 540C inform the jurors as follows:


“[It is not required that the defendant be present when the act causing the death occurs.]”


When appropriate this language should be modified consistent with the Banks/Clark factors to include the defendant’s absence during the killing in language such as the following:


Sample Instruction


It is not required that the defendant be present when the act causing the death occurs. However, in deciding whether the defendant was a major participant in the killing and whether (he/she) acted with reckless indifference consider any evidence that the defendant was not present during the killing.

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