Tag Archives: Special Circumstances


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 […]


Tags: , , , , , ,


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: , , , , , , , , , ,


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: , , , , , , , ,


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: , , , , ,


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: , , , , , ,


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: , , , , , , , , , ,


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: , , , , , , , , , , ,


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: , , , , , , , , , , ,


Lying in Wait Special Circumstance: Judge Was Required to Sua Sponte Instruct on Circumstantial Evidence
November 2nd, 2018

In People v. Sandoval (2015) 62 Cal.4th 394 the CSC reversed the lying in wait special circumstance because the trial judge failed to sua sponte instruct, per CJ 8.83 or CJ 8,83.1 that between two reasonable inferences from circumstantial evidence, the jury must choose the inference pointing to innocence: “We … conclude that the prosecution’s […]


Tags: , , , ,


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: , , , , ,