Tag Archives: 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 […]


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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. […]


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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.) […]


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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.) […]


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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 […]


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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 […]


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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 […]


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