The evidence of reckless indifference to human life supported defendants’ convictions for felony murder. Defendants participated in an attempted robbery, during which one of the victims was killed. During their initial trial, Senate Bill No. 1437 was passed, which amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder. It amended Penal Code section 189 to provide that a defendant who was not the actual killer and lacked an intent to kill is not liable for felony murder unless he was a major participant in the underlying felony and acted with reckless indifference to human life. A mistrial was granted because the trial had proceeded on an invalidated felony murder theory. During the subsequent trial, defendants were convicted of first degree felony murder. On appeal, they argued the evidence was insufficient to establish they acted with the “reckless indifference to human life” now required for felony murder. (Pen. Code, § 189, subd. (e)(3).) Held: Affirmed. In People v. Banks (2015) 61 Cal.4th 788, the court derived a nonexclusive list of factors bearing on whether an aider and abettor of felony murder was a “major participant.” (Pen. Code, § 190.2, subd. (d).) With respect to the “reckless indifference to human life” element of a special circumstance (§ 190.2, subd. (d)), People v. Clark (2016) 63 Cal.4th 522, discussed objective factors reflecting this element, such as the defendant’s presence during the incident, his knowledge the crime would involve the use of weapons, the duration of the offense, evidence suggesting the defendant knew his accomplices might use lethal force, and the defendant’s efforts to minimize the possibility of violence during the crime. Here, defendants actively participated in a robbery, each wielding a gun. They were present for the shooting and made no effort to assist the victim. The evidence supported a finding of reckless indifference.

The trial court did not err by failing to instruct on robbery as a lesser included offense (LIO) to felony murder. The trial court declined to give an LIO instruction because attempted robbery is not an LIO to murder. Defendants argued that after SB 1437’s changes to the murder law, their guilt in an attempted robbery and resulting killing does not automatically make them guilty of felony murder. Rather, the prosecution must prove they were major participants in the underlying felony and acted with reckless indifference to human life. Therefore, the jury might find them guilty of attempted robbery, but not of murder. In determining whether an offense is an LIO of another, there are two tests: the elements test and the accusatory pleading test. Under section 189, subdivision (a), robbery is only one of multiple predicate offenses that may be used to prove felony murder. Thus, it does not satisfy the requirement “that the greater”—i.e., felony murder—”cannot be committed without also committing the lesser”—i.e., robbery, because multiple predicate offenses can form the basis for felony murder. Nor does the accusatory pleading test render robbery an LIO of felony murder, because only the pleading is considered for the greater offense and in this case the information did not provide the predicate offense for the felony murder allegation.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A159105.PDF