CALCRIM’s Failure to Define the Term “Actual Killer” Erroneously Allows the Jurors to Conclude That an Aider and Abettor Can Be an “Actual Killer” October 10th, 2020
CC 703 requires the jury to find the Enmund/Tison requirements only if they find that the defendant was not “the actual killer….” However, the term “actual killer” is not defined in CC 703 or anywhere else in the CALCRIM instructions. This is a critical omission because the legislature did not intend the term “actual […]
Tags: CC 540B , CC 540C , CC 703 , Felony Murder Special Circumstance , Special Circumstances , Tison/Banks
CALCRIM 730 Omits The Required Tison/Enmund Elements October 5th, 2020
Under Enmund v. Florida (1982) 458 U.S. 782, 797 the federal Constitution requires an aider and abettor to capital murder to have the intent to kill, and California’s death penalty law permits the jury to find the felony-murder special-circumstance allegation true without finding an intent to kill. But, in Tison v. Arizona (1987) 481 U.S. […]
Tags: CC 540B , CC 540C , CC 703 , CC 730 , Felony Murder Special Circumstance , Special Circumstances , Tison/Banks
Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Mental Impairment September 17th, 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.) […]
Tags: CC 3428 , CC 540B , CC 540C , CC 703 , CC 730 , Felony Murder Special Circumstance , Mens Rea: Knowledge , Mental Impairment , Sample Instructions , Special Circumstances , Tison/Banks
Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Intoxication September 12th, 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.) […]
Tags: CC 3426 , CC 540B , CC 540C , CC 625 , CC 703 , CC 730 , Felony Murder , Mens Rea: Knowledge , Mental Impairment , Sample Instructions , Special Circumstances , Tison/Banks
CC 540B Factors Relevant to Whether Defendant Acted with Reckless Indifference to Human Life March 4th, 2020
People v. Clark (2016) 63 Cal.4th 522, 614-620 identified certain factors to guide the jury in its determination of whether the defendant acted with reckless indifference to human life but did not hold that the court has a sua sponte duty to instruct on those factors. Clark noted that these factors had been applied by […]
Tags: CC 540B , Felony Murder , Homicide
CC 540B Factors Relevant to Whether Defendant Acted with Reckless Indifference to Human Life March 4th, 2020
People v. Clark (2016) 63 Cal.4th 522, 614-620 identified certain factors to guide the jury in its determination of whether the defendant acted with reckless indifference to human life but did not hold that the court has a sua sponte duty to instruct on those factors. Clark noted that these factors had been applied by […]
Tags: CC 540B , Felony Murder , Homicide
Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime September 3rd, 2019
In re Taylor (2019) 34 Cal. App. 5th 543 held that given the lack of evidence that defendant planned anything more dangerous than a garden-variety armed robbery, reckless disregard to the risk to human life, for purposes of the felony murder special circumstance under PC 190.2 (d), was not established by defendant’s actions after the […]
Tags: CC 540A , CC 540B , CC 540C , CC 702 , CC 703 , CC 730 , CC 731 , CC 732 , Felony Murder , Felony Murder Special Circumstance , Special Circumstances , Tison/Banks
CALCRIM Proposes Changes to Felony Murder/Accomplice Instructions Per SB 1437 to Be Effective September 24, 2019 June 14th, 2019
The proposed modifications are summarized in an “Invitation to Comment” (5/28 – 7/5/19; CALCRIM-2019-01). The proposed effective date of the changes is 9/24/19. CALCRIM summarizes the proposed felony murder/accomplice changes 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 […]
Tags: CALCRIM Revisions , CC 402 , CC 403 , CC 540A , CC 540B , CC 540C , CC 541A , CC 541B , CC 541C , Felony Murder
Felony Murder: Applicability of Duress to Underlying Felony July 10th, 2015
When a murder is based on a felony murder theory, the court has a sua sponte duty to give a duress defense instruction (CC 3402) if the defendant claims that he or she committed the underlying felony under duress. (CC 3402 Bench Notes.) However, if the defendant formed the intent to be an aider […]
Tags: CC 540A , CC 540B , CC 540C , Duress , Felony Murder
Act Causing Death Not Distinct from Underlying Felony July 6th, 2015
On April 23, 2010, CC 540A, as well as CC 540B and CC 540C, were revised. As explained by the CC Committee, it was pointed out to them that the first degree felony murder instructions refer to the “act causing death” as though it were distinct from the underlying felony and this could be […]
Tags: CC 540A , CC 540B , CC 540C , Felony Murder
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