Tag Archives: Special Circumstances


Felony Murder Special Circumstances: Tison Factors — Jury Should Not Give Undue Weight to Factors Specifically Included CC 703
May 18th, 2021

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] […]


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Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence
May 4th, 2021

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 includes […]


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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: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors
April 13th, 2021

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.   Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with […]


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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 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: Any One Tison Factor May, by Itself, Leave the Jurors with A Reasonable Doubt
December 23rd, 2020

CC 703 includes the following caveat regarding the specific factors listed for the jury’s consideration as to the reckless indifference and major participant allegations:   No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant [acted with reckless indifference to human life] [was a […]


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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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