Tag Archives: CC 540B


Intent Plus Aiding Required For SB 1437; But Only The Underlying Felony Has To Be Aided
March 28th, 2023

“Senate Bill 1437’s author described the purpose of the new law as “‘restor[ing] proportional responsibility in the application of California’s murder statute [by] reserving the harshest punishments for those who intentionally planned or actually committed the killing.’” (Assem. Com. on Public Safety, June 26, 2018, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.), at […]


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CALCRIM Erroneously Fails To Require That The Defendant “Personally Killed” The Victim
February 13th, 2023

The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:   Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission […]


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CALCRIM Erroneously Fails To Require That The Defendant “Personally Killed” The Victim
January 16th, 2023

The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:   Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission […]


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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 […]


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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.) […]


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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 […]


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Felony Murder: Uncharged Predicate Felony Must Still be Proved Beyond a Reasonable Doubt
March 15th, 2021

PRACTICE NOTE: When a defendant is charged with a felony murder but not the predicate underlying felony, “there is a requirement of proof beyond a reasonable doubt of the underlying felony” (People v. Hart (1999) 20 Cal.4th 546, 609) and “…the defendant is entitled, upon request, to a specific instruction on the necessity of proving […]


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Felony Murder Special Circumstance: “Actual Killer” Determination — CALCRIM 703 Misstates the Burden of Proof
January 28th, 2021

California law and the federal constitution require a finding of one of the following as an essential element of the felony murder special circumstance enumerated in Penal Code § 190.2(a)(17): The defendant was the actual killer of the victim; or The defendant acted with intent to kill; or The defendant aided and abetted the murder […]


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Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting
December 21st, 2020

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.) […]


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Felony Murder Special Circumstance: Reckless Indifference — Consciousness of Guilt Not Alone Sufficient to Prove Guilt or Supply Missing Elements
December 18th, 2020

CC 703 invites the jurors to consider the defendant’s actions after the crime in determining the “reckless indifference” by telling the jurors that they may consider the following specific factor: “Did the defendant have an opportunity … to help the victim(s)?” However, the defendant’s post-crime actions are not alone sufficient to prove reckless indifference. “…[A] […]


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