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.) […]
Tags: CC 540B , CC 540C , CC 625 , CC 703 , CC 730 , Felony Murder Special Circumstance , Mens Rea: Knowledge , Mental Impairment , Sample Instructions , Special Circumstances , Tison/Banks
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] […]
Tags: CC 540B , CC 540C , CC 703 , Felony Murder Special Circumstance , Intoxication , Mens Rea: Knowledge , Sample Instructions , Special Circumstances , Tison/Banks
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
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
CC 703: Felony Murder: Special Circumstance Liability — Factors Re: Major Participant Determination September 16th, 2016
PC 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137 [95 L. Ed. 2d 127, 107 S. Ct. 1676], “which articulates the constitutional limits on executing felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal. 4th 788, 794.) “Tison and a prior decision on which […]
Tags: CALCRIM Revisions , CC 703 , Death Penalty , Felony Murder Special Circumstance , Special Circumstances , Tison/Banks
What Is A “Major Participant” Within The Meaning Of Penal Code 190.2(d)? March 7th, 2015
Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment […]
Tags: CC 703 , Death Penalty , Due Process , First Degree Felony Murder , Homicide , Sample Instructions
Felony Murder Special Circumstances: Required Elements February 1st, 2014
In a felony-murder special-circumstances case the judge has a duty to instruct that the defendant must (1) have personally had the intent to kill or (2) have been a major participant in the commission of the underlying felony and have acted with reckless indifference to human life. (People v. Mil (2012) 53 Cal. 4th […]
Tags: CC 703 , CC 731 , Felony Murder , Felony Murder Special Circumstance , Homicide , Special Circumstances , Tison/Banks
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