CALCRIM No. 703. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990 - Felony Murder (Pen. Code, § 190.2(d))
Judicial Council of California Criminal Jury Instructions (2024 edition)
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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;
2. 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
engages in criminal activity that a reasonable person would know
involves a grave risk of death and he or she knows that the activity
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 acted with reckless indifference
to human life, consider all the evidence. No one of the following factors is
necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life.
Among the factors you may consider are:
[• Did the defendant know that [a] lethal weapon[s] would be
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present during the <insert underlying felony>?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
likely to be used?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
used?]
[• Did the defendant know the number of weapons involved?]
[• Was the defendant near the person(s) killed when the killing
occurred?]
[• Did the defendant have an opportunity to stop the killing or to
help the victim(s)?]
[• How long did the crime last?]
[• Was the defendant aware of anything that would make a
coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of violence?]
[• How old was the defendant?]
[• <insert any other relevant factors>]]
[When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary,
nor is any one of them necessarily enough, to determine whether the
defendant was a major participant. Among the factors you may consider
are:
[• What was the defendant’s role in planning the crime that led to
the death[s]?]
[• What was the defendant’s role in supplying or using lethal
weapons?]
[• What did the defendant know about dangers posed by the crime,
any weapons used, or past experience or conduct of the other
participant[s]?]
[• Was the defendant in a position to facilitate or to prevent the
death?]
[• Did the defendant’s action or inaction play a role in the death?]
[• What did the defendant do after lethal force was used?]
[• <insert any other relevant factors.>]]
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
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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, September
2019, April 2020, September 2023
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
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
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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, supra, 30 Cal.4th at p. 1117.) 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 . . . .”
In People v. Banks, supra, 61 Cal.4th at pp. 803-808, the court identified certain
factors to guide the jury in its determination of 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.
The court does not have a sua sponte duty to define “reckless indifference to human
life.” (People v. Estrada, supra, 11 Cal.4th at p. 578.) 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. Clark (2016) 63 Cal.4th 522, 614-620 [203 Cal.Rptr.3d 407, 372 P.3d
811], the court identified certain factors to guide the jury in its determination of
whether the defendant acted with reckless indifference to human life but did not
hold that the court has a sua sponte duty to instruct on those factors. Clark noted
that these factors had been applied by appellate courts “in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.” (Id. at
p. 618.) The trial court should determine whether the Clark 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. In re Scoggins (2020) 9 Cal.5th 667,
676-677 [264 Cal.Rptr.3d 804, 467 P.3d 198]; People v. Clark, supra, 63 Cal.4th
at pp. 614-620; People v. Banks, supra, 61 Cal.4th at pp. 807-811; People v.
Estrada, supra, 11 Cal.4th at p. 578; Tison v. Arizona, supra, 481 U.S. at pp.
157-158.
• Constitutional Standard for Intent by Accomplice. Tison v. Arizona, supra, 481
U.S. at pp. 157-158.
• Major Participant. People v. Banks, supra, 61 Cal.4th at pp. 803-808.
• Defendant’s Youth Can Be Relevant Factor When Determining Reckless
Indifference. People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093 [302
Cal.Rptr.3d 847] [20-year-old defendant]; People v. Keel (2022) 84 Cal.App.5th
546, 558-559 [300 Cal.Rptr.3d 483] [juvenile defendant]; People v. Ramirez
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(2021) 71 Cal.App.5th 970, 987 [286 Cal.Rptr.3d 771] [juvenile defendant]; In
re Moore (2021) 68 Cal.App.5th 434, 454 [283 Cal.Rptr.3d 584] [juvenile
defendant].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 536,
543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14[2][b][ii] (Matthew Bender).
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