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Name: People v. Mil
Case #: S184665
Court: CA Supreme Court
District CalSup
Opinion Date: 01/23/2012

Court prejudicially erred by failing to instruct on the elements of felony murder special circumstance for a non-killer defendant. Mil was convicted of first degree murder with the special circumstances of burglary-murder and robbery-murder. The special circumstances instructions were correct for a defendant who is the actual killer. However, the jury was not instructed that for non-killer culpability, the defendant must either have had the intent to kill, or must have acted with reckless indifference to human life and be a major participant in the commission of the underlying felony. (Pen. Code, §190.2, subd. (d).) The Court of Appeal found the instructional error harmless. The Supreme Court reversed. The court found the omission of two elements of the special circumstance was not structural error, but was amenable to harmless error review under the state and federal Constitutions. The Court found “the critical inquiry . . . is not the number of omitted elements but the nature of the issues removed from the jury’s consideration.” Here, the instructional error did not render the trial unfair or prevent the jury from performing its function. However, the defendant contested whether he acted with reckless indifference to human life. Thus, the record supports a reasonable doubt as to that element of the special circumstance finding. Although the evidence was sufficient to sustain a finding of reckless indifference if challenged for sufficiency, the court’s task in reviewing prejudice from instructional error “is whether any rational factfinder could have come to the opposite conclusion.” Properly instructed, a rational juror could have had a reasonable doubt whether Mil “was subjectively aware of a grave risk of death when he participated” in these offenses.