726. Special Circumstances: Murder of Judge, Prosecutor, Government Official, or Juror, Pen. Code, §§ 190.2(a)(11), (12), (13) & (20)

The defendant is charged with the special circumstance of murder of a (prosecutor/judge/government official/juror).

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

1. The defendant intended to kill <insert name of decedent>;

2. <insert name of decedent> was a (prosecutor/ judge/government official/juror in <insert name or description of local, state, or federal court of record in this or another state>);

AND

3. The defendant intended that <insert name of decedent> be killed (to prevent (him/her) from performing (his/her) official duties as a (prosecutor/judge/government official/juror)/ [or] in retaliation for ______'s<insert name[s] of decedent[s]> performance of (his/her) official duties as a (prosecutor/judge/government official/juror)).

[(A/an) <insert title of government official's position> is an (elected/appointed) government official.]

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 jury must determine whether the decedent is a prosecutor, judge, juror, or government official. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of "government official" (e.g., "a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are government officials"). (Ibid.) However, the court may not instruct the jury that the decedent was a government official as a matter of law (e.g., "Officer Reed was a government official"). (Ibid.)

Authority

Special Circumstance: Prosecutor. Pen. Code, § 190.2(a)(11).

Special Circumstance: Judge. Pen. Code, § 190.2(a)(12).

Special Circumstance: Government Official. Pen. Code, § 190.2(a)(13).

Special Circumstance: Juror. Pen. Code, § 190.2(a)(20).

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 458.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13[11], [12], [13], [20], 87.14 (Matthew Bender).

(New January 2006)