CALCRIM No. 702. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990 - Other Than Felony Murder (Pen. Code, § 190.2(c))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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702.Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990 - Other Than Felony Murder (Pen. Code,
§ 190.2(c))
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] of <insert only special circumstance[s] under
Pen. Code, §§ 190.2(a)(2), (3), (4), (5) or (6)>, 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 only
special circumstance[s] under Pen. Code, §§ 190.2(a)(2), (3), (4), (5) or (6)>
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.)
Proposition 115 modified the intent requirement of the special circumstance law,
codifying the decisions of People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240
446
Cal.Rptr. 585, 742 P.2d 1306], and Tison v. Arizona (1987) 481 U.S. 137, 157-158
[107 S.Ct. 1676, 95 L.Ed.2d 127]. The current law provides that the actual killer
does not have to act with intent to kill unless the special circumstance specifically
requires intent. (Pen. Code, § 190.2(b).) A defendant who is not the actual killer
must act with intent to kill unless the felony-murder special circumstance is charged.
(Pen. Code, §§ 190.2(c), (d).) If the felony-murder special circumstance is charged,
then the People must prove that a defendant who was not the actual killer either
acted with intent to kill or was a major participant and acted with reckless
indifference to human life. (Pen. Code, § 190.2(d); People v. Estrada (1995) 11
Cal.4th 568, 571 [46 Cal.Rptr.2d 586, 904 P.2d 1197].)
Use this instruction for any case in which the jury could conclude that the defendant
was an accomplice to a homicide that occurred after June 5, 1990, and the
defendant is charged with a special circumstance, other than felony murder, that
does not require intent to kill by the actual killer. Currently, the only special
circumstances, other than felony murder, that do not require intent to kill by the
actual killer are: Prior conviction for murder (§ 190.2(a)(2)); Multiple offenses of
murder (§ 190.2(a)(3)); Murder by hidden explosive (§ 190.2(a)(4)); Murder to avoid
arrest (§ 190.2(a)(5)); and Murder by mail bomb (§ 190.2(a)(6)). However, 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.
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.
When the felony-murder special circumstance is charged, use CALCRIM No. 703,
Special Circumstances: Intent Requirement for Accomplice After June 5,
1990 - Felony Murder.
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 one of the special circumstances that does not require
intent to kill by the principal, then the 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 then
give both bracketed paragraphs.
Do not give this instruction if accomplice liability is not at issue in the case.
Related Instructions
CALCRIM No. 701, Special Circumstances: Intent Requirement for Accomplice
Before June 6, 1990.
HOMICIDE CALCRIM No. 702
447
CALCRIM No. 703, Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990 - Felony Murder.
AUTHORITY
• Accomplice Intent Requirement. Pen. Code, § 190.2(c).
• Constitutional Standard for Intent by Accomplice. Tison v. Arizona (1987) 481
U.S. 137, 157-158 [107 S.Ct. 1676, 95 L.Ed.2d 127].
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).
CALCRIM No. 702 HOMICIDE
448

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