In reliance on Banks and Clark, CC 703 identifies a number of specific factors for the jurors “may consider” in deciding the “reckless indifference” and “major participant” elements of the felony murder special circumstance.
As to reckless indifference CC 703 tells the jurors:
…Among the factors you may consider are:
- Did the [sic] [Was the defendant] present during the _____________ <insert underlying felony?
- Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?
- Did the defendant know that [a] lethal weapon[s] (was/were) used?
- Did the defendant know the number of weapons involved?
- 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)?
- How long did the crime last?
- Was the defendant aware of anything that would make a coparticipant likely to kill?
- Did the defendant try to minimize the possibility of violence?
- <insert any other relevant factors>
As to the major participant issue CC 703 states:
Among the factors you may consider are:
- What was the defendant’s role in planning the crime that led to the death[s]?
- What was the defendant’s role in supplying or using lethal weapons?
- What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?
- 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?
- What did the defendant do after lethal force was used?
- <insert any other relevant factors.>
Such instructions — which list specific fact based considerations or factors for the jury to “consider” — are not necessarily improper. (See e.g, People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors].) In fact, this kind of instruction appears elsewhere in CALCRIM. (See PG XI(D)(3) CALCRIM Instructions Listing Specific Factors For Juror Consideration.)
However, when specific evidentiary factors are included in an instruction a cautionary instruction may be appropriate to avoid the danger the jurors may give undue emphasis to the enumerated factors. (See e.g People v. Taylor (2010) 48 Cal.4th 574, 656 [jury may place “undue emphasis” on overly specific instruction]; cf. Davis v. Erickson (1960) 53 C2d 860, 863-64.)
Do not give the listed factors [greater] [undue] weight simply because they are mentioned in this instruction.