CALCRIM No. 701. Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990

Judicial Council of California Criminal Jury Instructions (2022 edition)

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701.Special Circumstances: Intent Requirement for Accomplice
Before June 6, 1990
If you decide that (the/a) defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special
circumstance[s] <insert special circumstance[s] without intent
requirement for actual killer>, you must also decide whether the defendant
acted with the intent to kill.
In order to prove (this/these) special circumstance[s] for a defendant who
is not the actual killer but who is guilty of first degree murder as (an
aider and abettor/ [or] a member of a conspiracy), the People must
prove that the defendant acted with the intent to kill.
[The People do not have to prove that the actual killer acted with the
intent to kill in order for (this/these) special circumstance[s] to be true.
[If you decide that the defendant is guilty of first degree murder, but you
cannot agree whether the defendant was the actual killer, then, in order
to find (this/these) special circumstance[s] true, you must find that the
defendant acted with the intent to kill.]]
If the defendant was not the actual killer, then the People have the
burden of proving beyond a reasonable doubt that (he/she) acted with
the intent to kill for the special circumstance[s] <insert
special circumstance[s] without intent requirement for actual killer> to be
true. If the People have not met this burden, you must find (this/these)
special circumstance[s] (has/have) not been proved true [for that
defendant].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the mental state required for
accomplice liability when a special circumstance is charged and there is sufficient
evidence to support the finding that the defendant was not the actual killer. (See
People v. Jones (2003) 30 Cal.4th 1084, 1117 [135 Cal.Rptr.2d 370, 70 P.3d 359].)
If there is sufficient evidence to show that the defendant may have been an
accomplice and not the actual killer, the court has a sua sponte duty to give the
accomplice intent instruction, regardless of the prosecution’s theory of the case.
(Ibid.)
For all murders committed prior to June 6, 1990, the People must prove that an
aider and abettor or coconspirator acted with intent to kill for all special
circumstances except Penal Code section 190.2(a)(2) (prior conviction for murder).
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(People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d
1306] [modifying Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [197
Cal.Rptr. 79, 672 P.2d 862]]; see pre-June 6, 1990, Pen. Code, § 190.2(b).) Since the
Supreme Court ruling in People v. Anderson, supra, the People do not have to show
intent to kill on the part of the actual killer unless specified in the special
circumstance. (People v. Anderson, supra, 43 Cal.3d at p. 1147.) However, if the
killing occurred during the window of time between Carlos and Anderson (1983 to
1987), then the People 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].)
Use this instruction for any case in which the jury could conclude that the defendant
was an accomplice to a homicide that occurred prior to June 6, 1990, where any
special circumstance is charged that does not require intent to kill on the part of the
actual killer, other than Penal Code section 190.2(a)(2). For those special
circumstances where intent to kill is required for both the actual killer and the
accomplice, this instruction is not required. For those special circumstances, the
instruction on the special circumstance states “the defendant intended to kill” as an
element.
The court should carefully review the prior versions of Penal Code section 190.2 to
determine if the special circumstance required intent to kill at the time of the killing
because the special circumstances have been amended by referendum several times.
Give the bracketed paragraph stating that the People do not have to prove intent to
kill on the part of the actual killer if there is a codefendant alleged to be the actual
killer or if the jury could convict the defendant as either the actual killer or an
accomplice.
If the jury could convict the defendant either as a principal or as an accomplice, and
the defendant is charged with a special circumstance that does not require intent to
kill by the principal, then jury must find intent to kill if they cannot agree that the
defendant was the actual killer. (People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) In such cases, the court should give both bracketed
paragraphs.
If the homicide occurred between 1983 and 1987, do not give this instruction.
(People v. Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802, 58 P.3d 931].)
For homicides during that period, the prosecution must prove intent to kill by the
actual killer as well as the accomplice. The court should make sure that the
instruction on the special circumstance states that the prosecution must prove that
the defendant intended to kill.
Do not give this instruction if accomplice liability is not at issue in the case.
Related Instructions
CALCRIM No. 702, Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990 - Other Than Felony Murder.
CALCRIM No. 703, Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990 - Felony Murder.
CALCRIM No. 701 HOMICIDE
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AUTHORITY
Accomplice Intent Requirement. Pre-June 6, 1990, Pen. Code, § 190.2(b);
People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d
1306].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 536,
543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14 (Matthew Bender).
HOMICIDE CALCRIM No. 701
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