California Criminal Jury Instructions (CALCRIM) (2017)

703. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990 - Felony Murder, Pen. Code, § 190.2(a)(17)

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703.Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))
If you decide that (the/a) defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special
circumstance[s] of <insert felony murder special
circumstance[s]>, you must also decide whether the defendant acted
either with intent to kill or with reckless indifference to human life.
In order to prove (this/these) special circumstance[s] for a defendant
who is not the actual killer but who is guilty of first degree murder as
(an aider and abettor/ [or] a member of a conspiracy), the People must
prove either that the defendant intended to kill, or the People must
prove all of the following:
1. The defendant’s participation in the crime began before or
during the killing;
2. The defendant was a major participant in the crime;
AND
3. When the defendant participated in the crime, (he/she) acted
with reckless indifference to human life.
[A person acts with reckless indifference to human life when he or she
knowingly engages in criminal activity that he or she knows involves a
grave risk of death.]
[The People do not have to prove that the actual killer acted with intent
to kill or with reckless indifference to human life in order for the special
circumstance[s] of <insert felony-murder special
circumstance[s]> to be true.]
[If you decide that the defendant is guilty of first degree murder, but
you cannot agree whether the defendant was the actual killer, then, in
order to find (this/these) special circumstance[s] true, you must find
either that the defendant acted with intent to kill or you must find that
the defendant acted with reckless indifference to human life and was a
major participant in the crime.] [When you decide whether the
defendant was a major participant, consider all the evidence. Among the
factors you may consider are:
1. What role did the defendant play in planning the criminal
enterprise that led to the death[s]?
2. What role did the defendant play in supplying or using lethal
weapons?
3. What awareness did the defendant have of particular dangers
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posed by the nature of the crime, any weapons used, or past
experience or conduct of the other participant[s]?
4. Was the defendant present at the scene of the killing, in a
position to facilitate or prevent the actual murder?
5. Did the defendant’s own actions or inactions play a particular
role in the death?
6. What did the defendant do after lethal force was used?
[7. <insert any other relevant factors.>]
No one of these factors is necessary, nor is any one of them necessarily
enough, to determine whether the defendant was a major participant.]
If the defendant was not the actual killer, then the People have the
burden of proving beyond a reasonable doubt that (he/she) acted with
either the intent to kill or with reckless indifference to human life and
was a major participant in the crime for the special circumstance[s] of
<insert felony murder special circumstance[s]> to be true. If
the People have not met this burden, you must find (this/these) special
circumstance[s] (has/have) not been proved true [for that defendant].
New January 2006; Revised April 2008, February 2016, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the mental state required
for accomplice liability when a special circumstance is charged and there is
sufficient evidence to support the finding that the defendant was not the actual
killer. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135 Cal.Rptr.2d 370, 70
P.3d 359].) If there is sufficient evidence to show that the defendant may have been
an accomplice and not the actual killer, the court has a sua sponte duty to give the
accomplice intent instruction, regardless of the prosecution’s theory of the case.
(Ibid.)
Do not give this instruction when giving CALCRIM No. 731, Special
Circumstances: Murder in Commission of Felony—Kidnapping With Intent to Kill
After March 8, 2000 or CALCRIM No. 732, Special Circumstances: Murder in
Commission of Felony—Arson With Intent to Kill. (People v. Odom (2016) 244
Cal.App.4th 237, 256–257 [197 Cal.Rptr.3d 774].)
When multiple special circumstances are charged, one or more of which require
intent to kill, the court may need to modify this instruction.
Proposition 115 modified the intent requirement of the special circumstance law,
codifying the decisions of People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240
Cal.Rptr. 585, 742 P.2d 1306], and Tison v. Arizona (1987) 481 U.S. 137, 157–158
[107 S.Ct. 1676, 95 L.Ed.2d 127]. The current law provides that the actual killer
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does not have to act with intent to kill unless the special circumstance specifically
requires intent. (Pen. Code, § 190.2(b).) If the felony-murder special circumstance
is charged, then the People must prove that a defendant who was not the actual
killer was a major participant and acted with intent to kill or with reckless
indifference to human life. (Pen. Code, § 190.2(d); People v. Banks (2015) 61
Cal.4th 788, 807–809 [189 Cal.Rptr.3d 208, 351 P.3d 330]; People v. Estrada
(1995) 11 Cal.4th 568, 571 [46 Cal.Rptr.2d 586, 904 P.2d 1197].)
Use this instruction for any case in which the jury could conclude that the
defendant was an accomplice to a killing that occurred after June 5, 1990, when the
felony-murder special circumstance is charged.
Give the bracketed paragraph stating that the People do not have to prove intent to
kill or reckless indifference on the part of the actual killer if there is a codefendant
alleged to be the actual killer or if the jury could convict the defendant as either
the actual killer or an accomplice.
If the jury could convict the defendant either as a principal or as an accomplice,
the jury must find intent to kill or reckless indifference if they cannot agree that the
defendant was the actual killer. (People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) In such cases, the court should give both the
bracketed paragraph stating that the People do not have to prove intent to kill or
reckless indifference on the part of the actual killer, and the bracketed paragraph
that begins with “[I]f you decide that the defendant is guilty of first degree murder,
but you cannot agree whether the defendant was the actual killer . . . .”
The court does not have a sua sponte duty to define “reckless indifference to
human life.” (People v. Estrada (1995) 11 Cal.4th 568, 578 [46 Cal.Rptr.2d 586,
904 P.2d 1197].) However, this “holding should not be understood to discourage
trial courts from amplifying the statutory language for the jury.” (Id. at p. 579.) The
court may give the bracketed definition of reckless indifference if requested.
In People v. Banks (2015) 61 Cal.4th 788, 803–808 [189 Cal.Rptr.3d 208, 351 P.3d
330], the court identified certain factors to guide the jury about whether the
defendant was a major participant, but stopped short of holding that the court has a
sua sponte duty to instruct on those factors. The trial court should determine
whether the Banks factors need be given.
Do not give this instruction if accomplice liability is not at issue in the case.
AUTHORITY
• Accomplice Intent Requirement, Felony Murder. Pen. Code, § 190.2(d).
Reckless Indifference to Human Life. People v. Estrada (1995) 11 Cal.4th
568, 578 [46 Cal.Rptr.2d 586, 904 P.2d 1197]; Tison v. Arizona (1987) 481 U.S.
137, 157–158 [107 S.Ct. 1676, 95 L.Ed.2d 127].
• Constitutional Standard for Intent by Accomplice. Tison v. Arizona (1987) 481
U.S. 137, 157–158 [107 S.Ct. 1676, 95 L.Ed.2d 127].
• Major Participant. People v. Banks (2015) 61 Cal.4th 788, 803–808 [189
Cal.Rptr.3d 208, 351 P.3d 330].
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Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 536,
543.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14[2][b][ii] (Matthew Bender).
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