September 2019 Revisions
February 26th, 2020

On September 24, 2019 the Judicial council approved, changes to the following

 

  1. Revisions to CALCRIM Nos. 101, 200, 362, 376, 402, 403, 511, 520, 524, 540A, 540B,

540C, 548, 561, 600, 703, 732, 860, 862, 863, 875, 970, 982, 983, 1128, 1191A, 1502, 2100,

2101, 2102, 2503, 2572, 2651, 2652, 2720, 2721, 2900, 2902, 3130, and 3145;

 

  1. Technical changes to CALCRIM Nos. 123, 208, 590, 810, 890, 1015, 1016, 1017, 1018,

1019, 1020, 1021, 1022, 1070, 1080, 1081, 1082, 1090, 1091, 1101, 1123, 1203, 2306, and

3406;

  1. Revocation of CALCRIM Nos. 541A, 541B, and 541C; and

 

  1. Updates to the Introduction to Felony-Murder

 

Below is an overview of some of the changes.

 

Felony Murder (CALCRIM Nos. 540A–540C and 541A–541C)

Senate Bill 1437 (Stats. 2018, ch. 1015) substantially changed accomplice liability for felony murder. As a result of these legislative changes, the instructions for felony murder need to be revised. CALCRIM No. 540A is the instruction for felony murder when the defendant is charged as the actual killer. This instruction required the least revision because felony murder liability for the actual killer did not change. CALCRIM Nos. 540B and 540C required more revisions and now contain the added elements for intent to kill (Pen. Code, § 189(e)(2)), major participant (Pen. Code, § 189(e)(3)), and the peace officer exception (Pen. Code, § 189(f)). The committee also proposes revoking CALCRIM Nos. 541A, 541B, and 541C. These instructions relate to second degree felony murder, which the new legislation effectively eliminated by adding subdivision (a)(3) to Penal Code section 188. The committee has proposed updates to the Introduction to Felony-Murder Series to explain these changes.

 

 

Natural and Probable Consequences (CALCRIM Nos. 402 and 403) and Attempted Murder

(CALCRIM No. 600)

Senate Bill 1437 added subdivision (a)(3) to Penal Code section 188. This subdivision contains the following statement: “Malice shall not be imputed to a person based solely on his or her participation in a crime.” The committee added a bench note to these three instructions to alert users that, as a result of this amendment, the natural and probable consequences doctrine might no longer apply to attempted murder.

 

Murder: Alternative Theories (CALCRIM No. 548)

Senate Bill 1437 added two theories of felony murder accomplice liability: aider and abettor with intent to kill and major participant with reckless indifference. The legislation also carved out an exception when the victim was a peace officer. The committee inserted new language in this instruction to account for murder prosecutions where the evidence supports more than one theory of felony murder liability.

 

Homicide: Provocative Act by Accomplice (CALCRIM No. 561)

The addition of subdivision (a)(3) to Penal Code section 188 also has potential consequences for provocative act liability when an accomplice commits the provocative act. The committee added a bench note about this possible impact.

 

Cautionary Admonitions and Duties of Judge and Jury (CALCRIM Nos. 101 and 200) Addressing the potential for bias among jurors during deliberations is an important issue. Based on requests from several trial court judges, the committee added additional language about bias to highlight to jurors the importance of not allowing bias to affect their deliberations.

 

Engaging in Oral Copulation or Sexual Penetration (CALCRIM No. 1128)

In People v. Saavedra (2018) 24 Cal.App.5th 605 (Saavedra), the trial court erred in instructing the jury with the general intent language of CALCRIM No. 252 in a prosecution for Penal Code section 288.7(b) because the underlying act was sexual penetration and not oral copulation. The court found the error to be harmless because CALCRIM No. 1128 “correctly defined sexual penetration and informed jurors of the requisite purpose.” Id. at p. 615. The committee added a bench note to instruct on specific intent when the underlying act is sexual penetration. The committee also added Saavedra to the authority section.

 

Consciousness of Guilt: False Statements (CALCRIM No. 362)

In People v. Burton (2018) 29 Cal.App.5th 917, the court upheld CALCRIM No. 362 over a challenge that the instruction’s reference to “the charged crime” improperly undermined the defendant’s claim that her false statement to the police reflected consciousness of guilt of a lesser offense. In response to this case, the committee added a bench note that suggests modifying the instruction when the evidence supports an inference that the defendant was aware of his or her guilt generally but not of the charged crime.

 

 

Instructions that involve deadly or dangerous weapon (CALCRIM Nos. 511, 524, 860, 862,

863, 875, 982, 983, 2503, 2720, 2721, 3130, and 3145)

In People v. Stutelberg (2018) 29 Cal.App.5th 314, the defendant was convicted of assault for waiving around a box cutter. The court reversed this conviction because CALCRIM Nos. 875 and 3145 did not provide the definition for inherently deadly or dangerous weapons. As a result, the court concluded that jurors could have erroneously classified the box cutter as inherently dangerous. In response to this holding, the committee added the definition of inherently deadly or dangerous weapon to these instructions and included bench notes about when trial courts should include the phrase “inherently deadly.” The committee also added case citations to the authority section.

 

Arson: Inhabited Structure or Property (CALCRIM No. 1502)

A user noted that the definition of an inhabited structure in the burglary instruction (CALCRIM No. 1701) contains different wording from the definition of that term in the arson instruction.

The committee decided to conform the arson instruction with the burglary definition of “inhabited.” The committee also added punctuation to make “inhabited structure” and “inhabited property” optional.

 

FOR TEXT OF ALL THE 09/2019 REVISIONS SEE

https://jcc.legistar.com/View.ashx?M=F&ID=7675719&GUID=9AEEFCDC-EDE9-4877-B55B-B46FE6D36AD8

 

SUGGESTIONS FROM PUBLIC WHICH THE COMMITTE REJECTED OR DEFERRED

 

101 & 200 Hon. Christopher Hite, San Francisco Superior Court I had one suggested edit to the instructions:

 

You must not let bias, prejudice, or public opinion influence your assessment of the evidence or your decision in this case. Many people have conscious and/or unconscious biases about other people. You must not be biased in favor of or against any party, witness, attorney, defendant[s], or alleged victim because of his or her disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, age, [or] socioeconomic status(./,) [or                                    <insert any other impermissible form of bias>.]

 

I am sure there was a lot of time and effort put into this change, but it seems to read a bit challenging to me. I’m not sure this fixes it all that much but if not, I

think the original needs to be more clear.

 The committee agrees with the suggestion to add “your” before “decision.” The committee disagrees with the suggestions to add “in this case” and “conscious and/or unconscious biases about other people.” To make the instruction clearer, the committee changed the second sentence to read: “Many people have assumptions and biases about or stereotypes of other people and may be unaware of them.”

 

402 & 403 Kate Chatfield, on behalf of The Justice Collaborative Comment – add to Bench Notes:

Do not give this instruction if the non-target crime committed by the coparticipant is murder. Penal Code section 188(a)(3), as amended by Statutes 2018, ch.1015 (S.B. 1437), became effective January 1, 2019. The amendment added “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Section 1 of S.B. 1437 stated, “(g) Except as stated in subdivision (e) of Section 189 of the Penal Code, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.”

 

There is no more liability for murder for a non-killer based on the natural and probable consequences doctrine. (See also Senate Concurrent Resolution 48, (Resolution Chapter 175, 2017–18 Regular Session)

 

The question whether this amendment abolished the natural and probable consequences doctrine as to attempted murder is unresolved.

 The committee disagrees with this suggestion. The committee has already added language about Pen. Code, § 188(a)(3) in the Related Issues section. The commenter’s proposed statement to include in the instructional duty section is unnecessary.
417 Robert Mestman, Sr. Deputy District Attorney, on behalf of the Orange County

District Attorney’s Office

 [The] paragraph under the heading “Conspiracy Liability – Natural and Probable Consequences” [in CALCRIM No. 540B] should be added to instruction No.

417.

 The committee does not currently have a proposed modification for this instruction and will consider this comment at its next meeting.

 

 

Instruction Commentator Comment Response
417 Kate Chatfield, on behalf of The Justice Collaborative Add to the bench notes under Instructional Duty:

Do not give this instruction if the non-target crime committed by the coconspirator is murder and the defendant did not act with express or implied malice.

 

Penal Code section 188(a)(3), as amended by Statutes 2018, ch.1015 (S.B. 1437), became effective January 1, 2019. The amendment added “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Section 1 of S.B. 1437 stated, “(g) Except as stated in subdivision (e) of Section 189 of the Penal Code, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.” (See also Senate Concurrent Resolution 48, (Resolution Chapter 175, 2017–18 Regular Session).

 

There is no more liability for murder for a non-killer based on the natural and probable consequences doctrine. The question whether this amendment

abolished the natural and probable consequences doctrine as to attempted murder is unresolved.

 The committee does not currently have a proposed modification for this instruction and will consider this comment at its next meeting.
540A Kate Chatfield, on behalf of The Justice Collaborative The note [on imperfect self-defense] states that “malice aforethought which imperfect self-defense negates, is not an element of felony murder.” (See People

v. Tabios (1998) 67 Cal. App. 4th 1, 6-9) However, after SB 1437, malice now is an element of felony murder for non-perpetrators of the killing. For the non-killer accomplice, that person either has to have the mental state of an intention to kill or act with the mental state of reckless indifference to human life in the killing. (See People v. Clark (2016) 63 Cal. 4th 522, 617.). One can conceive of a situation in which a defendant could raise a defense of imperfect self-defense or defense of others.

 

Accordingly, although this Note on Imperfect Self Defense appears in 540A (and appropriately not in 540B) to avoid confusion, it should state:

 The committee disagrees with this suggestion. Intent to kill is not the same as express malice and reckless indifference is not the same as implied malice. Although malice can be mitigated by heat of passion or imperfect self-defense, intent to kill and conscious disregard are not themselves mitigated by heat of passion or imperfect self-defense. Section 189(e) continues to allow for

imputed malice under certain

 

 

Instruction Commentator Comment Response
    Malice aforethought is not an element of felony murder when the

prosecution has proved beyond a reasonable doubt that the defendant was the actual killer.

 circumstances and that imputed

malice is not negated by heat of passion or imperfect self-defense.
540A The Offices of the Los Angeles County Public Defender and Alternate Public Defender Escape Rule in CALCRIM 540A.

The Introduction to the Proposed Changes states:

[T]he committee has deleted [CALCRIM no. 549] and replaced it with appropriate bench note references. If the defendant committed the homicidal act and fled, that killing did not occur in the commission of the felony if the fleeing felon has reached a place of temporary safety. (People v. Wilkins, supra, at p.

345.)

However, the language in CALCRIM 540A itself does not comport with this language and is legally insufficient. Proposed CALCRIM 540A contains a bracketed portion that states:

<If the facts raise an issue whether the commission of the felony continued while a defendant was fleeing the scene, give the following sentence instead of CALCRIM No. 3261, While Committing a Felony: Defined–Escape Rule.>

[The crime of—- <insert felony or felonies from Pen. Code, § 189> continues

until a defendant has reached a place of temporary safety.]

 

The instruction should contain the following statement:

If the defendant committed the homicidal act and fled, that killing did not occur in the commission of the felony if the fleeing felon has reached a place of temporary safety.

 

This language is consistent with the Supreme Court’s holding in Wilkins: When the killing occurs during flight, however, the escape rule establishes the outer limits of the continuous-transaction theory. Flight following a felony is considered part of the same transaction as long as the felon has not reached a

place of temporary safety. (People v. Wilkins (2013) 56 Cal.4th 333, 345, internal citations omitted.)

 This comment raises issues outside the scope of the current invitation to comment. The committee will consider this comment at its next meeting.
540B &

540C

 Robert Mestman, Sr. Deputy District Attorney, on behalf of

the Orange County

 AGREE WITH THE PROPOSAL IF IT IS MODIFIED

Felony murder of a police officer should be its own instruction. For instance,

CALCRIM 540B should be split into 2 instructions: 1) dealing with felony murder with the major participant language (PC § 189(e)(3)); and 2) felony

 The committee previously considered whether to create a separate peace officer exception

instruction. Ultimately the

 

 

Instruction Commentator Comment Response
  District Attorney’s Office murder dealing with death of law enforcement officer (PC § 189(f)). The logic behind this recommendation is that PC 189(f) states that the circumstance that are required in 189(e) [the factors that are subsequently “organized” in 540A, 540B, 540C] do not apply to felony murder of police officers. Further, 189(f) has additional factors that a jury must consider (e.g. officer in lawful performance of his duties, defendant knew or should have known victim was officer, etc.) that do not apply to felony murder under 189(e)(3). Thus, it is much cleaner to have separate instructions. Additionally, it is foreseeable where a prosecutor may proceed under both theories – a) felony murder where officer was in lawful performance of his duties and b) felony murder where defendant was a major participant. Thus, the court would have to instruct twice using 540B, but just using the different theories. [NOTE: we understand that 540B and C deal with

co-participant caused murder and other acts caused murder and therefore, for uniformity, the committee may want two instructions for felony murder of a police officer to mirror 540B and C, but ultimately that makes little sense given that felony murder of a police officer is now its own subset of the felony murder

rule.]

 committee decided to include the peace officer exception in these two instructions because it is preferable to have all accomplice liability theories in one instruction and unnecessary to create a separate instruction. However, in response to this comment, the committee added an “[OR]” before alternative 189(f) and additional punctuation so that a trial court would only need to instruct once using 540B (or 540C) regardless of how many theories of liability the evidence supported.

 

 

Instruction Commentator Comment Response
540B &

540C

 Barry P. Helft, Chief Deputy State Public Defender, on behalf of the Office of the State Public Defender (“OSPD”) Clarification of the Reckless Indifference Standard

These two proposed instructions reflect revisions undertaken in response to the amendments to the murder statutes made effective on January 1, 2019 by the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.). Specifically, both address the potential felony-murder liability of defendants who aided and abetted the underlying felony but did so without intending the resulting murder. As the instructions accurately state, such defendants can be found liable for the murder only if, as “major participant[s]” in the underlying felony they acted “with reckless indifference to human life.” (Pen. Code, § 189, subd. (e) (3).) The instructions provide the following guidance regarding the mental component of that standard:

 

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.

 

OSPD’s concern stems from the fact that the “major participant /reckless indifference” standard has long been applied in the context of the felony-murder special circumstance set forth in Penal Code section 190.2 and – although juries have been instructed accordingly – they have clearly misunderstood what the standard requires, for there have been (and continue to be) an exceptional number of appellate reversals of such findings based on the constitutional insufficiency of the evidence to support them. (E.g., People v. Clark (2016) 63 Cal.4th 522; People v. Banks (2015) 61 Cal.4th 788; In re Taylor (2019) 34 Cal.App.5th 543;

In re Ramirez (2019) 32 Cal.App.5th 384; In re Bennett (2018) 26 Cal.App.5th

1002; In re Miller (2017) 14 Cal.App.5th 960.)

 

In its opinions in these cases, the appellate courts have pointed to a ready source of confusion for jurors – namely, the notion that by merely participating in a felony that has the clear potential of resulting in violence (typically, an armed robbery) the aider and abettor has necessarily evinced “a reckless indifference to human life.” The Supreme Court has emphasized – in terms that speak directly to the proposed instruction – that “participation in an armed robbery, without

more, does not involve ‘engaging in criminal activities known to carry a grave

 When revising CALCRIM Nos. 540B and 540C pursuant to SB 1437, the committee incorporated the existing reckless indifference standard from CALCRIM No.

703 (Special Circumstances – Felony Murder) but did not evaluate whether this standard should be expanded or clarified. This suggestion is therefore outside the scope of the current invitation to comment. The committee will consider it at its next meeting.

 

 

Instruction Commentator Comment Response
    risk of death.’” (People v. Banks, supra, 61 Cal.4th at p. 805 [emphasis supplied; citation omitted]; accord, People v. Clark, supra, 63 Cal.4th at pp. 617-

618.) Rather, to suffer liability, “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” (Banks, supra, 61 Cal.4th at p. 801.) Thus the defendant’s conduct must demonstrate “a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)

OSPD suggests that, to avoid the confusion and improper, unjust results that have repeatedly arisen in the special circumstance context, the instructions incorporate the clarifying language found in the Supreme Court’s opinions. Thus OSPD proposes that the portions of CALCRIM Nos. 540B and 540C discussing “reckless indifference to human life” be modified to read substantially as follows:

 

A person acts with reckless indifference to human life when that person knowingly engages in criminal activity that he or she knows involves a grave risk of death. However, the defendant’s participation in [insert underlying felony] does not, in itself, constitute engaging in a criminal activity known to carry a grave risk of death. Rather, to find that the defendant acted with reckless disregard of human life you must determine that the defendant was aware of and willingly involved in the violent manner in which the crime was committed, demonstrating reckless indifference to the significant risk of death his or her actions created. Put another way, to find the defendant guilty under this theory you must find that his or her conduct demonstrated a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant did not

specifically desire that death as the outcome of his or her actions.

  
540B &

540C

 Barry P. Helft, Chief Deputy State Public

Defender, on behalf of

 Incorporation of “Related Issues” Commentary from CALCRIM NO. 540A

In the “Related Issues” section of both CALCRIM No. 540B and CALCRIM No. 540C, the Council has kept the paragraph incorporating the Related Issues

 The committee disagrees with this suggestion. Intent to kill is not the

same as express malice and

 

 

Instruction Commentator Comment Response
  the Office of the State Public Defender (“OSPD”) section of CALCRIM No. 540A (“Felony Murder: First Degree – Defendant Allegedly Committed Fatal Act.”) However, the amendment of Penal Code sections 188 and 189 by Senate Bill No. 1437 makes wholesale incorporation improper.

 

Specifically, the Related Issues section of CALCRIM No. 540A provides, in pertinent part, that “Imperfect self-defense is not a defense to felony murder because malice aforethought, which imperfect self-defense negates, is not an element of felony murder.” While that remains true for perpetrators after Senate Bill No. 1437, and thus is properly included in CALCRIM No. 540A, it is now an incorrect statement of the law for accomplices who did not commit the fatal act. The language thus should not be incorporated by reference into CALCRIM Nos. 540B and 540C.

 

Malice is now required for accomplices who did not commit the fatal act. (See Pen. Code, §§ 188, 189, as amended by Sen. Bill No. 1437.) To be guilty of first degree murder, the jury must find that a non-killer accomplice either directly aided and abetted the murder or was a major participant in a felony listed in Penal Code section 189 and acted with reckless indifference to human life.

Reckless indifference to human life is a state of malice aforethought. It “requires subjective awareness of a higher degree of risk than the ‘conscious disregard for human life’ required for conviction of second degree murder based on implied malice.” (People v. Johnson (2016) 243 Cal.App.4th 1247, 1285.) Because malice is now required, imperfect self-defense and other malice-negating theories are now applicable.

 

OSPD suggests revising the Related Issues sections of CALCRIM Nos. 540B and 540C, so that they read as follows:

See the Related Issues section of CALCRIM No. 540A, Felony Murder: First Degree – Defendant Allegedly Committed Fatal Act. However, malice-negating theories, including imperfect self-defense, remain available to defendants who did not commit

the fatal act and the jury must be instructed that the prosecutor

 reckless indifference is not the same as implied malice. Although malice can be mitigated by heat of passion or imperfect self-defense, intent to kill and conscious disregard are not themselves mitigated by heat of passion or imperfect self-defense. Section 189(e) continues to allow for imputed malice under certain circumstances and that imputed malice is not negated by heat of passion or imperfect self-defense.

 

 

Instruction Commentator Comment Response
    bears the burden to disprove all malice-negating theories beyond a reasonable doubt.  
540B,

540C &

703

 Kate Chatfield, on behalf of The Justice Collaborative In People v. Estrada, (1995) 11 Cal. 4th 568, 578, the Supreme Court stated that the court does not have a sua sponte duty to define “reckless indifference to human life” because this phrase has a “common understanding.” However, as People v. Banks, People v. Clark (2016) 63 Cal. 4th 522 and its progeny1 have made clear, this phrase is not commonly understood by juries. It has been improperly argued and applied, leading to overbroad application against defendants who did not act with reckless indifference to human life under the case law.

 

Moreover, in its current proposed form, the limited definition that is offered as a suggestion does not adequately focus the jury on the fact that the defendant must act with reckless indifference to human life in the actual murder; participating in a dangerous felony alone is insufficient to show the requisite recklessness. The proposed definition, even should the court give it, will allow the jury to improperly conflate the mere participation in the dangerous felony with a finding of reckless indifference to human life. This will result in defendants being improperly convicted of first-degree murder, as they have of special circumstances under Penal Code § 190.2 (d).

 

To highlight this point, instructions very similar to the proposed suggested instructions were given in In re Ramirez, 32 Cal. App. 5th at 395, fn. 5.

 

Although the California Supreme Court determined in Estrada that trial courts have no sua sponte duty to explain the phrase “reckless indifference to human life” to the jury (Estrada, supra, 11 Cal.4th at p. 581, 46 Cal.Rptr.2d 586, 904 P.2d 1197), the written form of CALJIC No. 8.80.1 (1996 rev.) (5th ed. 1988) instructed petitioner’s jury that ‘[a] defendant acts with reckless

indifference to human life when that defendant knows or is

 The committee disagrees with the comment that SB 1437 created a sua sponte duty to instruct on reckless indifference. Estrada held there was no duty to instruct on the meaning of reckless indifference for the felony-murder special circumstance. The passage of SB 1437, by making reckless indifference and major participant elements of accomplice liability for felony murder, does not change this holding.

 

Regarding the comment that the reckless indifference standard is inadequate: the committee incorporated this standard from CALCRIM No. 703 (Special Circumstances – Felony Murder) but did not evaluate whether it should be expanded or clarified. This suggestion is therefore outside the scope of the current invitation to comment and the committee will consider it at its next meeting.

1 See In re Bennett (2018) 26 Cal.App.5th 1002; People v. Taylor (2019) 34 Cal.App.5th 543; In re Ramirez (2019) 32 Cal.App.5th 384; In re Miller (2017) 14 Cal.App.5th 960

 

 

Instruction Commentator Comment Response
    aware that his acts involve a grave risk of death to an innocent human being.’

 

Thus, despite the fact that the jury was given this limited instruction on reckless indifference to human life the Ramirez court held: “no reasonable juror could have found defendant aided and abetted the attempted robbery ‘with reckless indifference to human life and as a major participant’ (§ 190.2, subd. (d)), as those terms are set out in Tison and explicated by Banks and Clark.” (Ramirez, supra, at 406.)

 

As courts have noted, in order to determine whether someone acted with reckless indifference to human life, a court or jury must assess a person’s “individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime.” (In re Bennett (2018) 26 Cal.App.5th 1002, emphasis added.) A trier of fact must focus on whether the defendant’s own actions in the killing exhibited the state of mind of reckless indifference. (See People v. Banks (2015) 61 Cal. 4th 788, 807 [as nothing at trial supported a conclusion that defendant’s own actions were recklessly indifferent, or involved a grave risk of death, special circumstance finding reversed].) A defendant’s own actions must evince a willingness to kill or to assist another in killing (People v. Clark (2016) 63 Cal. 4th 522, 617.); mere participation in a dangerous felony is insufficient. (See Banks, Clark, Tison, Enmunds)

 

Accordingly, as a result of SB 1437, the court must not only give an instruction on reckless indifference and major participation in the felony for accomplices under Penal Code § 189(e)(3) when the facts require it, as these are now elements of the offense for certain accomplices to a felony murder, but the court must also properly define what it means to act with reckless indifference to human life.

 

COMMENTER’S PROPOSED INSTRUCTIONS REGARDING RECKLESS INDIFFERENCE TO HUMAN LIFE

  

 

 

Instruction Commentator Comment Response
    <The following instructions must2 be given when reckless indifference and major participant under Pen. Code § 189(e)(3) applies>

[A person acts with reckless indifference to human life when he or she personally engages in criminal activity that he or she knows involves a grave risk of death.

Recklessness to human life is a standard of behavior in which one’s own actions shows a willingness to kill or to assist another in killing.

The fact that defendant or another accomplice was armed during the felony and therefore there was a foreseeable risk of death is insufficient on its own to find that defendant acted with reckless indifference to human life.

In determining whether defendant acted with reckless indifference to human life, you must assess the defendant’s own actions and individual responsibility for the loss of life not just [his/her] responsibility for the underlying crime. In order to decide whether the defendant acted with reckless indifference to human life, you may consider the following factors:

1)  The defendant’s knowledge of weapons, and the use and number of weapons

2)  The defendant’s proximity to the killing

3)  The defendant’s opportunity to stop the killing or aid the victim.

4)  The duration of the restraint of the victims before the murder.

5)  The defendant’s knowledge (either before or during the commission of the felony) that another participant was likely to kill. Awareness that another participant was armed is insufficient on its own to show that the defendant knew that participant was likely to kill.

6)  The defendant’s efforts to minimize the possibility of violence during the felony.

7)  [any other relevant factor]

No one of these factors is necessary, nor is any one of them necessarily

enough, to determine whether the defendant acted with reckless indifference to human life.]

  

2 As noted above, as a result of SB 1437, it must now be proven beyond a reasonable doubt that a person was the actual killer; intended to kill; or acted as a major participant in the felony and with reckless indifference to human life. Accordingly, when there is an issue as to whether a defendant acted with reckless indifference to human life, these instructions must be given.

 

 

Instruction Commentator Comment Response
    COMMENTER’S SUGGESTED BENCH NOTES

Instructional Duty

As “reckless indifference to human life” and acting as a “major participant” in the felony are necessary elements to be found liable for first degree murder under a theory of felony murder, the court has a sua sponte duty to define these elements for the jury.

 

The court does not have a sua sponte duty to define “reckless indifference to human life.” (People v. Estrada (1995) 11 Cal.4th 568, 578 [46 Cal.Rptr.2d 586, 904 P.2d 1197].) However, this “holding should not be understood to discourage trial courts from amplifying the statutory language for the jury.” (Id. at p. 579.) The court may give the bracketed definition of reckless indifference if requested.

 

In People v. Banks (2015) 61 Cal.4th 788, 803-808 [189 Cal.Rptr.3d 208, 351 P.3d 330], the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant but stopped short of holding that the court has a sua sponte duty to instruct on those factors. The trial court should determine whether the Banks factors need be given.

 

Alternatively, even if it is decided that there is no sua sponte duty to define the terms, the word “must” can be replaced with “may” with the expanded definition added.

 

AUTHORITY

* Reckless Indifference To Human Life (People v. Banks (2015) 61 Cal. 4th 788, 799-804, 807-812; People v. Clark (2016) 63 Cal. 4th 522, 614-624; In re

Bennett (2018) 26 Cal. App.5th 1002, 1021-1027; People v. Taylor (2019) 34 Cal. App. 5th 543; In re Ramirez (2019) 32 Cal. App. 5th 384; In re Miller

(2017) 14 Cal.App.5th 960, 967-977)

  
540B,

540C, &

703

 The Offices of the Los Angeles County Public Defender and Alternate Public Defender CALCRIMS 540B, 540C, and 703 Inadequately Define Reckless Indifference.

CALCRIMs 540B, 540C, and 703 instruct in a bracketed portion:

[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

 When revising CALCRIM Nos. 540B and 540C pursuant to SB 1437, the committee incorporated the existing reckless indifference

standard from CALCRIM No.

 

 

Instruction Commentator Comment Response
    of death.] This statement is misleading and will give jurors the misimpression that engaging in a dangerous felony is sufficient to find the defendant acted with reckless indifference:

 

[A]lthough the felonies listed in section 189 are those that the Legislature views as “inherently dangerous,” this did not collapse the differences between an analysis involving felony murder, on the one hand, and an analysis of reckless indifference to human life, on the other. [People v. Banks, supra, 61 Cal.4th at p. 810.] As we concluded, “[ w]hether a category of crimes is sufficiently dangerous to warrant felony-murder treatment, and whether an individual participant has acted with reckless indifference to human life, are different inquiries.” (Ibid.)

(People v. Clark (2016) 63 Cal.4th 522, 616.)

 

The jury must be informed that reckless indifference requires that the defendant “knowingly created a serious risk of death,” which is a higher standard than that proposed in these instructions.

 

[T]he governing standard as explained in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, is not satisfied with evidence of a general indifference to human life, but instead with evidence of a reckless indifference, which is shown when the defendant knowingly creates a serious risk of death. (Banks, supra, 61 Cal.4th at pp. 808- 809.)

(In re Taylor (2019) 34 Cal.App.5th 543, 560, emphasis added.)

 

The proposed instructions’ failure to properly define “reckless indifference” is compounded by the failure to include the case-specific factors expressly delineated in People v. Clark (2016) 63 Cal.4th 522; the Supreme Court considered these factors in upholding a determination of reckless indifference to human life:

 

(1)  Knowledge of Weapons, and Use and Number of Weapons

(2)  Physical Presence at the Crime and Opportunities to Restrain the Crime and/or Aid the Victim

 703 (Special Circumstances – Felony Murder) but did not evaluate whether this standard should be expanded or clarified. This suggestion is therefore outside the scope of the current invitation to comment. The committee will consider it at its next meeting.

 

 

Instruction Commentator Comment Response
    (3)  Duration of the Felony

(4)  Defendant’s Knowledge of Cohort’s Likelihood of Killing

(5)  Defendant’s Efforts to Minimize the Risks of the Violence During the Felony

 

The definition of “reckless indifference to human life” should be modified to instruct that the “person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows creates a serious

risk of death,” as well as include the five case-specific factors listed in Clark.

  
540C The Offices of the Los Angeles County Public Defender and Alternate Public Defender CALCRIM 540C Should Eliminate Reference to Natural and Probable Consequences.

The proposed instruction states:

An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.

 

This instruction creates confusion by using the term “natural and probable consequence” to describe causation in relation to murder. SB 1437’s amendments to Penal Code section 188 eliminated the natural and probable consequences doctrine as it relates to murder. Use of the term “natural and probable consequences” in this instruction will invite unnecessary confusion.

 

Under California law there is no strict requirement of “causation” between a “killing” and the commission of a felony under the felony-murder rule, however Penal Code section 189 does require a “killing” in the perpetration of one of the designated felonies. A simultaneous or coincidental “death” is not a “killing.” It has been held in California that death from a heart attack during the course of a robbery is murder if ” … but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.” (People v. Stamp (1969) 2 Ca1.App.3d 203, 209.) Conversely, if death would have occurred despite the robbery, the death is not a “killing” which would constitute “murder.” (People v. Gunnerson (1977) 74 Cal.App.3d 370, 378.) CALCRIM 540C should

be redrafted to state:

 This comment raises issues outside the scope of the current invitation to comment. The committee will consider this comment at its next meeting.

 

 

Instruction Commentator Comment Response
    An act causes death if the death would not have happened without the act. If the death would have occurred despite commission of the act, the death is not a killing that constitutes

murder.

  
548 Barry P. Helft, Chief Deputy State Public Defender, on behalf of the Office of the State Public Defender (“OSPD”) Potentially Ambiguous Language Regarding Unanimity Requirement

The final sentence of the proposed instruction (“you must unanimously agree that the murder is in the first or second degree”) is open to an erroneous interpretation. The jurors could understand it to mean that they could “unanimously agree that the murder is in the first or second degree” if some of them believe the murder is in the first degree, and some of them believe the murder is in the second degree. Even with that split in their opinions, they would be “unanimously agree[ing]” that the murder is either “in the first or second degree.”

 

This interpretation would be legally improper. The jury must unanimously determine whether murder is in the first or second degree. (People v. Jones (2014) 230 Cal.App.4th 373, 376.) And when two alternative theories of murder support different degrees of murder, juror unanimity is required as to the theory of guilt. (People v. Sanchez (2013) 221 Cal.App.4th 1012, 1018, 1026; see also

People v. Johnson (2016) 243 Cal.App.4th 1247, 1279-1280.)

 

To address this problem, OSPD suggests that the final sentence of the proposed instruction be replaced with the following language:

You do not all need to agree on the same theory, but in order to convict the defendant of murder you must be unanimous in finding the defendant guilty of first degree murder, or unanimous in finding the defendant guilty of second degree murder. If

different theories of murder support different degrees of murder, you must be unanimous as to the theory of guilt.

 The committee disagrees with the assertion that this instruction could be erroneously interpreted by jurors. Jurors are told not to return a verdict on second degree murder without first acquitting on first degree murder. Therefore, in the event of a split among jurors about degree, the jurors would understand not to return a verdict for either degree. Further, there is no requirement of unanimity as to the theory of guilt.

 

However, the committee agrees that the instruction could possibly be improved with different or additional language. Therefore, the committee will reconsider this comment at its next meeting.

 

 

Instruction Commentator Comment Response
548 Barry P. Helft, Chief Deputy State Public Defender, on behalf of the Office of the State Public Defender (“OSPD”) Revision of Bench Note to Reflect New Mens Rea Requirement

As noted, the proposed instruction informs jurors that, when the defendant is prosecuted for murder on two or more theories “You do not all need to agree on the same theory . . . .” There is some cautionary language in the proposed Bench Notes to CALCRIM No. 548 based on People v. Dellinger (1984) 163 Cal.App.3d 284, 300-302, stating: “If there is evidence of multiple acts from which the jury might conclude that the defendant killed the decedent, the court may be required to give CALCRIM No. 3500, Unanimity.”

 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) compelled statutory changes to the mens rea element of felony murder in cases where the defendant was not the actual perpetrator of the killing. Accordingly, OSPD suggests adding the following language to the Bench Note:

 

When the theories of murder include felony murder where the defendant allegedly committed the fatal act, and felony murder where the defendant did not commit the fatal act, a unanimity instruction must be given.

 

The additional language is necessary because the theories of felony murder as an actual perpetrator, and felony murder as an aider and abettor, rely on different acts or factual scenarios and, following the passage of Senate Bill No. 1437, there are separate defenses to each. Malice is now an element of the latter but not the former. A unanimity instruction is warranted in such a case for the same reasons

one was required in People v. Dellinger, supra, 163 Cal.App.3d 284.

 The committee disagrees with this proposal. Dellinger says that unanimity might be required for a multiple-acts case; it does not say that unanimity is required when there are multiple theories of felony-murder liability that differ based on who committed the single fatal act. The presence of different defenses might mean that a theory has not been proven beyond a reasonable doubt. It does not mean that there has to be unanimity as to the theory.
561 Kate Chatfield, on behalf of The Justice Collaborative As the proposed Bench Notes state, as a result of changes to Penal Code section 188, there can no longer be murder liability when a participant in a crime does not act with malice aforethought. (“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Penal Code section 188(a)(3))

As provocative act murder by an accomplice does not require malice aforethought on the part of the non-provocateur defendant, this theory of murder

liability has been legislatively repealed.

 The committee previously considered whether to revoke this instruction but decided instead to add the proposed cautionary bench note. To revoke this instruction in the absence of case law would be premature.

 

 

Instruction Commentator Comment Response
    Further, in addition to the changes Penal Code § 188 noted by Judicial Council, Section 1, subd.(g) of Senate Bill 1437 states:

 

Except as stated in subdivision (e) of Section 189 of the Penal Code, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

 

As provocative act murder by an accomplice is not premised on the defendant’s own actions, nor is the defendant’s subjective state of mind at issue, there can be no more murder liability under this doctrine for a non-killer. This instruction

should be revoked.

  
1045-1051 Robert Mestman, Sr. Deputy District Attorney, on behalf of the Orange County District Attorney’s Office The same issue addressed by this revision [in No. 1128] regarding specific intent required for sexual penetration of a minor 10 years or younger [288.7(b)] also applies to other sexual penetrations in violation of PC § 289. (See People v.

McCoy (2013) 215 Cal.App.4th 1510, 1539-40). A similar note with citation to McCoy and Saavedra should be included in instruction Nos. 1045 through 1051. While No. 1045 does contain a brief mention to “intent” under AUTHORITY, more clarification in a note or commentary would be appropriate. Here is proposed language:

If the defendant is charged with sexual penetration in violation of Penal Code § 289, instruct that the defendant must have specific intent.

(People v. McCoy (2013) 215 Cal.App.4th 1510, 1539-1540; People v. Saavedra

(2018) 24 Cal.App.5th 605, 613- 615.)

 The committee does not currently have proposed modifications for these instructions and will consider this comment at its next meeting.

 

 

Instruction Commentator Comment Response
511, 524, The Offices of the Los The modification to these instructions (dealing with deadly or dangerous The committee disagrees with the
860, 862- Angeles County Public weapons) is misleading and incomplete and should be reconsidered. The suggestion to add the clause “that
863, 875, Defender and Alternate instructions have been modified to add this language: is, weapons that have no practical
982-983, Public Defender   nondeadly purpose” to the
2503, 2720,   [An object is inherently deadly if it is deadly or dangerous in the definition of inherently deadly.
2721, 3130,   ordinary use for which it is designed.] This clause states an alternate and
3145     equivalent phrasing of the
    This is only a partial statement of the law and, therefore, is incorrect as stated. definition; it is not a limitation of
    The drafters claim to have taken this modification from People v. Stutelberg the definition. And reliance on In
    (2018) 29 Cal.App.5th 314, 317-318. The problem is that the drafters omitted the re B.M. is misplaced because that
    trailing portion of the definition. case dealt with a noninherently
      deadly weapon.
    The Court of Appeal in Stutelberg said, “An ‘inherently deadly or dangerous’  
    weapon is a term of art describing objects that are deadly or dangerous in “the  
    ordinary use for which they are designed,” that is, weapons that have no practical  
    nondeadly purpose.” (People v. Stutelberg (2018) 29 Cal.App.5th 314, 318-319.)  
    The correct definition, pursuant to Stutelberg is:  
    An object is inherently deadly if it is deadly or dangerous in the  
    ordinary use for which it is designed, that is, the object has no  
    practical nondeadly purpose.  
    The proposed instruction is incorrect as a matter of law because it leaves out the  
    final clause, which specifies what makes the item deadly. The Supreme Court, in  
    In re B.M. (2018) 6 Cal.5th 528, explains that whether an item is a deadly or  
    dangerous weapon is nuanced. First, the object alleged to be a deadly weapon  
    must be used in a manner that is not only capable of producing but also “likely to  
    produce death or great bodily injury.” (B.M. at p. 533, emphasis in original.) The  
    use of an object in a manner likely to produce death or great bodily injury  
    requires more than a mere possibility that serious injury could have resulted from the way the object was used. (B.M. at p. 534.) Second, the law does not permit conjecture as to how the object could have been used. Rather, the determination of whether an object is a deadly weapon must rest on evidence of how the defendant actually used the object. (B.M. at p. 534.) Third, although it is appropriate to consider the injury that could have resulted from the way the object was used, the extent of actual injury or lack of injury is also relevant. A conviction for assault with a deadly weapon does not require proof of an injury or even physical contact, but limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm. (B.M. at p. 535.) These CALCRIMs, if they are to be modified, must be modified to correctly state the definition found in In re

B.M.