734. Special Circumstances: Murder by Poison, Pen. Code, § 190.2(a)(19)

The defendant is charged with the special circumstance of murder by poison.

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

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

AND

2. The defendant killed <insert name of decedent> by the administration of poison.

[Poison is a substance, applied externally to the body or introduced into the body, that can kill by its own inherent qualities.]

[ <insert name of substance> is a poison.]

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 definition of poison if there is a dispute over whether the substance is a poison. Give the bracketed paragraph stating that the substance is a poison if the parties agree that the substance is a poison.

Authority

Special Circumstance. Pen. Code, § 190.2(a)(19).

Special Circumstance Is Constitutional. People v. Catlin (2001) 26 Cal.4th 81, 159 [109 Cal.Rptr.2d 31, 26 P.3d 357].

Poison Defined. People v. Van Deleer (1878) 53 Cal. 147, 149.

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 446.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13[19], 87.14 (Matthew Bender).

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

(New January 2006)