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729. Special Circumstances: Murder Because of Race, Religion, or Nationality, Pen. Code, § 190.2(a)(16)

The defendant is charged with the special circumstance of murder committed because of the deceased's (race[,]/ color[,]/ religion[,]/ nationality[,]/ [or] country of origin).

To prove that this special circumstance is true, the People must prove that the defendant intended to kill because of the deceased person's (race[,]/ color[,]/ religion[,]/ nationality[,]/ [or] country of origin).

[If the defendant had more than one reason to (commit[,]/ participate in[,]/ [or] aid and abet) the murder, the deceased person's (race[,]/ color[,]/ religion[,]/ nationality[,]/ [or] country of origin) must have been a substantial factor motivating the defendant's conduct. A substantial factor is more than a trivial or remote factor, but it does not need to be the only factor that motivated the defendant.]

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].)

Give the bracketed paragraph if there is evidence that the defendant had more than one reason to commit the murder. (In re M.S. (1995) 10 Cal.4th 698, 719-720 [42 Cal.Rptr.2d 355, 896 P.2d 1365].)

Authority

Special Circumstance. Pen. Code, § 190.2(a)(16).

Special Circumstance Constitutional. People v. Sassounian (1986) 182 Cal.App.3d 361, 413 [226 Cal.Rptr. 880]; People v. Talamantez (1985) 169 Cal.App.3d 443, 469 [215 Cal.Rptr. 542].

"Because of" Defined. Pen. Code, § 190.03(c); People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896

P.2d 1287]; In re M.S. (1995) 10 Cal.4th 698, 719-720 [42 Cal.Rptr.2d 355, 896 P.2d 1365].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 449.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13[16], 87.14 (Matthew Bender).

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

(New January 2006)