700. Special Circumstances: Introduction

If you find (the/a) defendant guilty of first degree murder, you must also decide if the People have proved that [one or more of] the special circumstance[s] is true.

The People have the burden of proving (the/each) special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. [You must return a verdict form stating true or not true for each special circumstance on which you all agree.]

In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree.

[You must (consider each special circumstance separately/ [and you must] consider each special circumstance separately for each defendant).]

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct the jury on the special circumstances and to instruct that, in the case of a reasonable doubt, the jury must find the special circumstance not true. (Pen. Code, § 190.4; see People v. Frierson (1979) 25 Cal.3d 142, 180 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Ochoa (1998) 19 Cal.4th 353, 420 [79 Cal.Rptr.2d 408, 966 P.2d 442].)

The court has a sua sponte duty to instruct the jury to consider each special circumstance separately. (See People v. Holt (1997) 15 Cal.4th 619, 681 [63 Cal.Rptr.2d 872, 937 P.2d 213].) Give the bracketed paragraph if more than one special circumstance is charged or there are multiple defendants.

Where multiple special circumstances are charged, the court may accept a partial verdict if the jury is unable to unanimously agree on all of the special circumstances. (Pen. Code, § 190.4.)

Authority

Reasonable Doubt. Pen. Code, § 190.4; People v. Frierson (1979) 25 Cal.3d 142, 180 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Ochoa (1998) 19 Cal.4th 353, 420 [79 Cal.Rptr.2d 408, 966 P.2d 442].

Partial Verdict. Pen. Code, § 190.4.

Consider Each Special Circumstance Separately. People v. Holt (1997) 15 Cal.4th 619, 681 [63 Cal.Rptr.2d 872, 937 P.2d 213].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 461.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.02, 87.10-87.15, 87.24 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[4][a] (Matthew Bender).

Related Issues

Right to Jury Trial on Special Circumstances

Unless specifically waived, the defendant has a right to jury trial on the special circumstance allegations even if the defendant pleaded guilty to the underlying charges. (People v. Granger (1980) 105 Cal.App.3d 422, 428 [164 Cal.Rptr. 363].)

Prior Conviction for Murder Requires Bifurcated Trial

If the defendant is charged with the special circumstance of a prior conviction for murder, under Penal Code section 190.2(a)(2), the court must bifurcate the trial. (Pen. Code, § 190.1.) The jury should first determine whether the defendant is guilty of first degree murder and whether any other special circumstances charged are true. (Ibid.) The prior conviction special circumstance should then be submitted to the jury in a separate proceeding. (Ibid.)

All Special Circumstances Constitutional Except Heinous or Atrocious Murder

The special circumstance for a heinous, atrocious, or cruel murder (Pen. Code, § 190.2(a)(14)) has been held to be unconstitutionally vague. (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803 [183 Cal.Rptr. 800, 647 P.2d 76]; People v. Sanders (1990) 51 Cal.3d 471, 520 [273 Cal.Rptr. 537, 797 P.2d 561].) No other special circumstance has been found unconstitutional.

(New January 2006)