Criminal Law

730. Special Circumstances: Murder in Commission of Felony, Pen. Code, § 190.2(a)(17)

The defendant is charged with the special circumstance of murder committed while engaged in the commission of <insert felony or felonies from Pen. Code, § 190.2(a)(17)>.

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

1. The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) <insert felony or felonies from Pen. Code, § 190.2(a)(17)>;

2. The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit) <insert felony or felonies from Pen. Code, § 190.2(a)(17)>;

<Give element 3 if defendant did not personally commit or attempt felony.>

[3. If the defendant did not personally commit [or attempt to commit] <insert felony or felonies from Pen. Code, § 190.2(a)(17)>, then a perpetrator, (whom the defendant was aiding and abetting/ [or] with whom the defendant conspired), personally commited [or attempted to commit] <insert felony or felonies from Pen. Code, § 190.2(a)(17)>;]

(3/4). (The defendant/ <insert name or description of person causing death if not defendant>) did an act that caused the death of another person;

[AND]

(4/5). The act causing the death and the <insert felony or felonies from Pen. Code, § 190.2(a)(17)> [or attempted <insert felony or felonies from Pen. Code, § 190.2(a)(17)>] were part of one continuous transaction(;/.)

<Give element 5/6 if the court concludes it must instruct on causal relationship between felony and death; see Bench Notes.>

[AND

(5/6). There was a logical connection between the act causing the death and the <insert felony or felonies from Pen. Code, § 190.2(a)(17)> [or attempted <insert felony or felonies from Pen. Code, § 190.2(a)(17)>]. The connection between the fatal act and the <insert felony or felonies from Pen. Code, § 190.2(a)(17)> [or attempted <insert felony or felonies from Pen. Code, § 190.2(a)(17)>] must involve more than just their occurrence at the same time and place.]

To decide whether (the defendant/ [and] the perpetrator) committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 190.2(a)(17)>, please refer to the separate instructions that I (will give/have given) you on (that/ those) crime[s]. [To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I (will give/have given) you on aiding and abetting.] [To decide whether the defendant was a member of a conspiracy to commit a crime, please refer to the separate instructions that I (will give/ have given) you on conspiracy.] You must apply those instructions when you decide whether the People have proved this special circumstance.

<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON ALL UNDERLYING FELONIES, AIDING AND ABETTING, AND CONSPIRACY ARE GIVEN.>

[The defendant must have (intended to commit[,]/ [or] aided and abetted/ [or] been a member of a conspiracy to commit) the (felony/felonies) of <insert felony or felonies from Pen. Code, § 190.2(a)(17)> before or at the time of the act causing the death.]

[In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit <insert felony or felonies from Pen. Code, § 190.2(a)(17)> independent of the killing. If you find that the defendant only intended to commit murder and the commission of <insert felony or felonies from Pen. Code, § 190.2(a)(17)> was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.]

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 also has a sua sponte duty to instruct on the elements of any felonies alleged. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481, 892 P.2d 1224].)

If the evidence raises the potential for accomplice liability, the court has a sua sponte duty to instruct on that issue. Give CALCRIM No. 703, Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder, Pen. Code, § 190.2(a)(17). If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990.

If causation is an issue, the court has a sua sponte duty to give CALCRIM No. 240, Causation.

If the prosecution's theory is that the defendant committed or attempted to commit the underlying felony, then select "committed [or attempted to commit]" in element 1 and "intended to commit" in element 2. In addition, in the paragraph that begins with "To decide whether," select "the defendant" in the first sentence. Give all appropriate instructions on any underlying felonies.

If the prosecution's theory is that the defendant aided and abetted or conspired to commit the felony, select one or both of these options in element 1 and the corresponding intent requirement in element 2. Give bracketed element 3. In addition, in the paragraph that begins with "To decide whether," select "the perpetrator" in the first sentence. Give the second and/or third bracketed sentences. Give all appropriate instructions on any underlying felonies and on aiding and abetting and/or conspiracy with this instruction.

Bracketed element 6 is based on People v. Cavitt (2004) 33 Cal.4th 187, 193 [14 Cal.Rptr.3d 281, 91 P.3d 222]. In Cavitt, the Supreme Court clarified the liability of a nonkiller under the felony-murder rule when a cofelon commits a killing. The court held that "the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act causing the death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Ibid. [italics in original].) The majority concluded that the court has no sua sponte duty to instruct on the necessary causal connection. (Id. at pp. 203-204.) In concurring opinions, Justice Werdegar, joined by Justice Kennard, and Justice Chin expressed the view that the jury should be instructed on the necessary causal relationship. (Id. at pp. 212-213.) The court should give bracketed element 6 if the evidence raises an issue over the causal connection between the felony and the killing. In addition, the court may give this bracketed element at its discretion in any case in which this instruction is given. If the prosecution alleges that the defendant did not commit the felony but aided and abetted or conspired to commit the felony, the committee recommends giving bracketed element 6. (See discussion of conspiracy liability in the Related Issues section of CALCRIM No. 540B, Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act.)

If there is evidence that the defendant did not form the intent to commit the felony until after the homicide, the defendant is entitled on request to an instruction pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124-127 [287 P.2d 497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].) Give the bracketed sentence that begins with "The defendant must have (intended to commit." For an instruction specially tailored to robbery-murder cases, see People v. Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 399, 789 P.2d 127].

In addition, the court must give the final bracketed paragraph stating that the felony must be independent of the murder if the evidence supports a reasonable inference that the felony was committed merely to facilitate the murder. (People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Clark (1990) 50 Cal.3d 583, 609 [268 Cal.Rptr. 399, 789 P.2d 127]; People v. Kimble (1988) 44 Cal.3d 480, 501 [244 Cal.Rptr. 148, 749 P.2d 803]; People v. Navarette (2003) 30 Cal.4th 458, 505 [133 Cal.Rptr.2d 89, 66 P.3d 1182].)

The Supreme Court has not decided whether the trial court has a sua sponte duty to instruct on the meaning of "one continuous transaction." (See People v. Cavitt (2004) 33 Cal.4th 187, 204 [14 Cal.Rptr.3d 281, 91 P.3d 222].) If the evidence raises an issue of whether the act causing the death and the felony were part of "one continuous transaction," the committee recommends that the court also give CALCRIM No. 549, Felony Murder: One Continuous Transaction—Defined.

Proposition 115 added Penal Code section 190.41, eliminating the corpus delicti rule for the felony-murder special circumstance. (Pen. Code, § 190.41; Tapia v. Superior Court (1991) 53 Cal.3d 282, 298 [279 Cal.Rptr. 592, 807 P.2d 434].) If, however, the alleged homicide predates the effective date of the statute (June 6, 1990), then the court must modify this instruction to require proof of the corpus delicti of the underlying felony independent of the defendant's extrajudicial statements. (Tapia v. Superior Court, supra, 53 Cal.3d at p. 298.)

If the alleged homicide occurred between 1983 and 1987 (the window of time between Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [197 Cal.Rptr. 79, 672 P.2d 862] and People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306]), then the prosecution must also prove intent to kill on the part of the actual killer. (People v. Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802, 58 P.3d 931]; People v. Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6 P.3d 150].) The court should then modify this instruction to specify intent to kill as an element.

Authority

Special Circumstance. Pen. Code, § 190.2(a)(17).

Specific Intent to Commit Felony Required. People v. Cavitt (2004) 33 Cal.4th 187, 197 [14 Cal.Rptr.3d 281, 91 P.3d 222]; People v. Valdez (2004) 32 Cal.4th 73, 105 [8 Cal.Rptr.3d 271, 82 P.3d 296].

Continuous Transaction Requirement. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.3d 281, 91 P.3d 222]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 88 [17 Cal.Rptr.3d 710, 96 P.3d 30] [applying rule to special circumstance]; People v. Hernandez (1988) 47 Cal.3d 315 [253 Cal.Rptr. 199, 763 P.2d 1289], 348; People v. Fields (1983) 35 Cal.3d 329, 364-368 [197 Cal.Rptr. 803, 673 P.2d 680]; People v. Ainsworth (1988) 45 Cal.3d 984, 1025-1026 [248 Cal.Rptr. 568, 755 P.2d 1017].

Logical Connection Required for Liability of Nonkiller. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.3d 281, 91 P.3d 222].

Provocative Act Murder. People v. Briscoe (2001) 92 Cal.App.4th 568, 596 [112 Cal.Rptr.2d 401] [citing People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1081 [53 Cal.Rptr.2d 207]].

Concurrent Intent. People v. Mendoza (2000) 24 Cal.4th 130, 183 [99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Clark (1990) 50 Cal.3d 583, 608-609 [268 Cal.Rptr. 399, 789 P.2d 127].

Felony Cannot Be Incidental to Murder. People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; People v. Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6 P.3d 150].

Instruction on Felony as Incidental to Murder. People v. Kimble (1988) 44 Cal.3d 480, 501 [244 Cal.Rptr. 148, 749 P.2d 803]; People v. Clark (1990) 50 Cal.3d 583, 609 [268 Cal.Rptr. 399, 789 P.2d 127]; People v. Navarette (2003) 30 Cal.4th 458, 505 [133 Cal.Rptr.2d 89, 66 P.3d 1182].

Proposition 115 Amendments to Special Circumstance. Tapia v. Superior Court (1991) 53 Cal.3d 282, 298 [279 Cal.Rptr. 592, 807 P.2d 434].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, §§ 450, 451, 452, 453.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, § 87.13[17] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[2][b] (Matthew Bender).

Related Issues

Applies to Felony Murder and Provocative Act Murder

"The fact that the defendant is convicted of murder under the application of the provocative act murder doctrine rather than pursuant to the felony-murder doctrine is irrelevant to the question of whether the murder qualified as a special-circumstances murder under former section 190.2, subdivision (a)(17). The statute requires only that the murder be committed while the defendant was engaged in the commission of an enumerated felony." (People v. Briscoe (2001) 92 Cal.App.4th 568, 596 [112

Cal.Rptr.2d 401] [citing People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1081 [53 Cal.Rptr.2d 207]].)

Concurrent Intent to Kill and Commit Felony

"Concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance." (People v. Mendoza (2000) 24 Cal.4th 130, 183 [99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Clark (1990) 50 Cal.3d 583, 608-609 [268 Cal.Rptr. 399, 789 P.2d 127].)

Multiple Special Circumstances May Be Alleged

The defendant may be charged with multiple felony-related special circumstances based on multiple felonies committed against one victim or multiple victims of one felony. (People v. Holt (1997) 15 Cal.4th 619, 682 [63 Cal.Rptr.2d 782, 937 P.2d 213]; People v. Andrews (1989) 49 Cal.3d 200, 225-226 [260 Cal.Rptr. 583, 776 P.2d 286].)

(New January 2006)