737. Special Circumstances: Murder of Transportation Worker, Pen. Code, § 190.25

The defendant is charged with the special circumstance of murdering (a/an) (operator/driver/station agent/ticket agent) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 190.25>.

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/an) (operator/ driver/station agent/ticket agent) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 190.25> performing (his/her) duties;

AND

3. When <insert name of decedent> was killed, the defendant knew, or reasonably should have known, that <insert name of decedent> was (a/an) (operator/ driver/station agent/ticket agent) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 190.25> and that (he/she) was performing (his/her) duties.

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].)

This special circumstance alone does not provide for the death penalty. (People v. Marks (2003) 31 Cal.4th 197, 234 [2 Cal.Rptr.3d 252, 72 P.3d 1222].) However, if the defendant is also convicted of a special circumstances listed in Penal Code section 190.2(a), the defendant may be eligible for the death penalty. (Ibid.; see also Pen. Code, § 190.25(c).)

Authority

Special Circumstance. Pen. Code, § 190.25.

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 459.

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

(New January 2006)