Criminal Law

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721. Special Circumstances: Multiple Murder Convictions (Same Case), Pen. Code, § 190.2(a)(3)

The defendant is charged with the special circumstance of having been convicted of more than one murder in this case.

To prove that this special circumstance is true, the People must prove that:

1. The defendant has been convicted of at least one charge of first degree murder in this case;

AND

2. The defendant has also been convicted of at least one additional charge of either first or second degree murder in this case.

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on the elements of the special circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d 573, 941 P.2d 752].) The court must submit the multiple-murder special circumstance to the jury unless the defendant has specifically waived jury trial on the special circumstance. (People v. Marshall (1996) 13 Cal.4th 799, 850 [55 Cal.Rptr.2d 347, 919 P.2d 1280].)

Intent to kill is not required for the actual killer but is required for an accomplice. If the evidence raises the issue of accomplice liability, the court has a sua sponte duty to instruct on that issue. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135 Cal.Rptr.2d 370, 70 P.3d 359].) Give CACLCRIM No. 702, Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder. If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990.

In a case in which the prosecution seeks the death penalty, only one special circumstance of multiple murder may be alleged. (People v. Harris (1984) 36 Cal.3d 36, 67 [201 Cal.Rptr. 782, 679 P.2d 433]; People v. Anderson (1987) 43 Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].)

Authority

Special Circumstance. Pen. Code, § 190.2(a)(3).

One Special Circumstance May Be Alleged When Death Penalty Sought. People v. Harris (1984) 36 Cal.3d 36, 67 [201 Cal.Rptr. 782, 679 P.2d 433]; People v. Anderson (1987) 43 Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].

Must Submit to Jury. People v. Marshall (1996) 13 Cal.4th 799, 850 [55 Cal.Rptr.2d 347, 919 P.2d 1280].

Intent to Kill Not Required for Actual Killer. People v. Anderson (1987) 43 Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 440.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, § 87.13[3] (Matthew Bender).

Related Issues

Applies to Killing of Woman and Fetus

Application of the multiple-murder special circumstance to the killing of a woman and her unborn fetus is constitutional. (People v. Dennis (1998) 17 Cal.4th 468, 510 [71 Cal.Rptr.2d 680, 950 P.2d 1035].)

One Count of First Degree Murder Required

The defendant must be convicted of one count of first degree murder for this special circumstance to apply. (People v. Williams (1988) 44 Cal.3d 883, 923 [245 Cal.Rptr. 336, 751 P.2d 395]; People v. Cooper (1991) 53 Cal.3d 771, 828 [281 Cal.Rptr. 90, 809 P.2d 865].) However, the additional murder or murders may be second degree. (See People v. Miller (1990) 50 Cal.3d 954, 995 [269 Cal.Rptr. 492, 790 P.2d 1289].)

(New January 2006)