California, United States of America
The following excerpt is from People v. Felix, D066686 (Cal. App. 2015):
"Under the felony-murder rule, a murder 'committed in the perpetration of, or attempt to perpetrate' one of several enumerated felonies, including robbery, is first degree murder. [Citation.] The robbery-murder special circumstance applies to a murder 'committed while the defendant was engaged in . . . the commission of, [or] attempted commission of robbery. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27-28.)
When the defendant is an accomplice rather than the actual killer, the People must plead and prove the defendant either intended to kill ( 190.2, subd. (c)) or acted with "reckless indifference to human life" while a "major participant" in the underlying felony. ( 190.2, subd. (d); see People v. Thompson (2010) 49 Cal.4th 79, 125-126 [for special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a) of 190.2, which includes robbery, an aider and abettor must have been a major participant and have acted with reckless indifference to human life].) " '[T]he culpable mental state of "reckless indifference to life" is one in which the defendant "knowingly engage[es] in
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criminal activities known to carry a grave risk of death" . . . .' [Citation.] This mental state thus requires the defendant be 'subjectively aware that his or her participation in the felony involved a grave risk of death.'" (People v. Mil (2012) 53 Cal.4th 400, 417, quoting People v. Estrada (1995) 11 Cal.4th 568, 577.)
Courts have found substantial evidence of reckless indifference to life under circumstances where, as here, a defendant, knowing about the presence of a weapon, has continued to assist with a violent robbery and flee rather than come to the injured victim's aid. (See People v. Lopez (2011) 198 Cal.App.4th 1106, 1115-1118 [shooter's testimony that accomplice knew he had a gun and was with him when he picked it up, as well as evidence the accomplice may have been planning to "jack" the victim behind his back supported jury's conclusion she acted with reckless indifference to the life of the man she lured into the alley]; People v. Proby (1998) 60 Cal.App.4th 922, 929 [defendant knew of codefendant's willingness to do violence and provided him with a gun, and continued to rob a restaurant, took money and left after the codefendant shot the victim in the back of the head]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 [sufficient evidence for special circumstance found where defendant was involved in planning the robbery, knew another codefendant had a knife, went into the restroom and struggled with the victim who was stabbed, and "fled together with his accomplices and the robbery loot, leaving the victim to die"].)
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