CALCRIM No. 700. Special Circumstances: Introduction (Pen. Code, § 190.2)
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
K. SPECIAL CIRCUMSTANCES
(i) General Instructions
700.Special Circumstances: Introduction (Pen. Code, § 190.2)
If you find (the/a) defendant guilty of first degree murder, you must also
decide whether the People have proved that [one or more of] the special
circumstance[s] is true.
The People have the burden of proving (the/each) special circumstance
beyond a reasonable doubt. If the People have not met this burden, you
must find the special circumstance has not been proved. [You must
return a verdict form stating true or not true for each special
circumstance on which you all agree.]
In order for you to return a finding that a special circumstance is or is
not true, all 12 of you must agree.
[You must (consider each special circumstance separately/ [and you
must] consider each special circumstance separately for each defendant).]
New January 2006
The court has a sua sponte duty to instruct the jury on the special circumstances
and to instruct that, in the case of a reasonable doubt, the jury must find the special
circumstance not true. (Pen. Code, § 190.4; see People v. Frierson (1979) 25 Cal.3d
142, 180 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Ochoa (1998) 19 Cal.4th 353,
420 [79 Cal.Rptr.2d 408, 966 P.2d 442].)
The court has a sua sponte duty to instruct the jury to consider each special
circumstance separately. (See People v. Holt (1997) 15 Cal.4th 619, 681 [63
Cal.Rptr.2d 782, 937 P.2d 213].) Give the bracketed paragraph if more than one
special circumstance is charged or there are multiple defendants.
Where multiple special circumstances are charged, the court may accept a partial
verdict if the jury is unable to unanimously agree on all of the special
circumstances. (Pen. Code, § 190.4.)
• Reasonable Doubt. Pen. Code, § 190.4; People v. Frierson (1979) 25 Cal.3d 142,
180 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Ochoa (1998) 19 Cal.4th 353,
420 [79 Cal.Rptr.2d 408, 966 P.2d 442].
• Partial Verdict. Pen. Code, § 190.4.
• Consider Each Special Circumstance Separately. People v. Holt (1997) 15
Cal.4th 619, 681 [63 Cal.Rptr.2d 782, 937 P.2d 213].
Right to Jury Trial on Special Circumstances
Unless specifically waived, the defendant has a right to jury trial on the special
circumstance allegations even if the defendant pleaded guilty to the underlying
charges. (People v. Granger (1980) 105 Cal.App.3d 422, 428 [164 Cal.Rptr. 363].)
Prior Conviction for Murder Requires Bifurcated Trial
If the defendant is charged with the special circumstance of a prior conviction for
murder, under Penal Code section 190.2(a)(2), the court must bifurcate the trial.
(Pen. Code, § 190.1.) The jury should first determine whether the defendant is guilty
of first degree murder and whether any other special circumstances charged are true.
(Ibid.) The prior conviction special circumstance should then be submitted to the
jury in a separate proceeding. (Ibid.)
All Special Circumstances Constitutional Except Heinous or Atrocious Murder
The special circumstance for a heinous, atrocious, or cruel murder (Pen. Code,
§ 190.2(a)(14)) has been held to be unconstitutionally vague. (People v. Superior
Court (Engert) (1982) 31 Cal.3d 797, 803 [183 Cal.Rptr. 800, 647 P.2d 76]; People
v. Sanders (1990) 51 Cal.3d 471, 520 [273 Cal.Rptr. 537, 797 P.2d 561].) No other
special circumstance has been found unconstitutional.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012), Punishment, § 544.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.02, 87.10-87.15, 87.24 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[a] (Matthew Bender).
CALCRIM No. 700 HOMICIDE