California Criminal Jury Instructions (CALCRIM) (2017)

720. Special Circumstances: Financial Gain, Pen. Code, § 190.2(a)(1)

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(ii) Special Circumstances
720.Special Circumstances: Financial Gain (Pen. Code,
§ 190.2(a)(1))
The defendant is charged with the special circumstance of murder for
financial gain [in violation of Penal Code section 190.2(a)(1)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill;
[AND]
2. The killing was carried out for financial gain(;/.)
<Give element 3 only if robbery-murder also charged; see Bench
Notes.>
[AND
3. (The defendant/ <insert name or description of
principal if not defendant>) expected the financial gain to result
from the death of <insert name of decedent>.]
New January 2006
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].)
The third element should only be given when the defendant is also charged with a
robbery-murder special circumstance. (People v. Bigelow (1984) 37 Cal.3d 731, 751
[209 Cal.Rptr. 328, 691 P.2d 994]; People v. Howard (1988) 44 Cal.3d 375, 409
[243 Cal.Rptr. 842, 749 P.2d 279].) When both are charged, there is a risk that the
jury will read the financial gain circumstance broadly, causing it to overlap with the
robbery-murder special circumstance. (People v. Bigelow, supra, 37 Cal.3d at p.
751.) In such cases, the financial gain special circumstance is subject to “a limiting
construction under which . . . [it] applies only when the victim’s death is the
consideration for, or an essential prerequisite to, the financial gain sought by the
defendant.” (Ibid.)
The third element should not be given if the robbery-murder special circumstance
is not charged. (People v. Howard (1988) 44 Cal.3d 375, 410 [243 Cal.Rptr. 842,
749 P.2d 279].) “Bigelow’s formulation should be applied when it is important to
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serve the purposes underlying that decision, but . . . it is not intended to restrict
construction of ‘for financial gain’ when overlap is not a concern.” (Ibid. [emphasis
in original].) In such cases, the unadorned language of the statute is sufficiently
clear for the jury to understand. (Id. at pp. 408–409; People v. Noguera (1992) 4
Cal.4th 599, 635–637 [15 Cal.Rptr.2d 400, 842 P.2d 1160].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(1).
Cannot Overlap With Robbery Murder. People v. Bigelow (1984) 37 Cal.3d
731, 751 [209 Cal.Rptr. 328, 691 P.2d 994]; People v. Montiel (1985) 39 Cal.3d
910, 927 [218 Cal.Rptr. 572, 705 P.2d 1248].
• Language of Statute Sufficient If No Robbery-Murder Charge. People v.
Howard (1988) 44 Cal.3d 375, 410 [243 Cal.Rtpr. 842, 749 P.2d 279]; People v.
Noguera (1992) 4 Cal.4th 599, 635–637 [15 Cal.Rptr.2d 400, 842 P.2d 1160].
• Expectation of Financial Benefit. People v. Howard (1988) 44 Cal.3d 375,
409 [243 Cal.Rptr. 842, 749 P.2d 279]; People v. Edelbacher (1989) 47 Cal.3d
983, 1025 [254 Cal.Rptr. 586, 766 P.2d 1]; People v. Noguera (1992) 4 Cal.4th
599, 636 [15 Cal.Rptr.2d 400, 842 P.2d 1160].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 441.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[1], 87.14 (Matthew Bender).
RELATED ISSUES
Financial Gain Need Not Be Primary or Sole Motive
“[T]he relevant inquiry is whether the defendant committed the murder in the
expectation that he would thereby obtain the desired financial gain.” (People v.
Howard (1988) 44 Cal.3d 375, 409 [243 Cal.Rptr. 842, 749 P.2d 279]; People v.
Noguera (1992) 4 Cal.4th 599, 636 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) Financial
gain does not have to be “a ‘dominant,’ ‘substantial,’ or ‘significant’ motive.”
(People v. Noguera, supra, 4 Cal.4th at pp. 635–636 [special circumstance applied
where defendant both wanted to kill wife in order to be with another woman and to
inherit her estate]; People v. Michaels (2002) 28 Cal.4th 486, 519 [122 Cal.Rptr.2d
285, 49 P.3d 1032] [applied where defendant wanted to protect friend from abuse
by victim and help friend get proceeds of insurance policy].)
Need Not Actually Receive Financial Gain
“Proof of actual pecuniary benefit to the defendant from the victim’s death is
neither necessary nor sufficient to establish the financial-gain special circumstance.”
(People v. Edelbacher (1989) 47 Cal.3d 983, 1025–1026 [254 Cal.Rptr. 586, 766
P.2d 1] [financial gain element satisfied where defendant believed death would
relieve him of debt to victim even though legally not true]; People v. Noguera
(1992) 4 Cal.4th 599, 636 [15 Cal.Rptr.2d 400, 842 P.2d 1160]; People v. Michaels
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(2002) 28 Cal.4th 486, 519 [122 Cal.Rptr.2d 285, 49 P.3d 1032] [satisfied even
though insurance company refused to pay].)
Defendant May Act for Another to Receive Financial Gain
“Defendant’s other proffered instructions were similarly flawed. His second
alternative would not have embraced the prospect that the killing was committed
with the expectation that another would benefit financially . . . .” (People v.
Howard (1988) 44 Cal.3d 375, 409, fn. 9 [243 Cal.Rptr. 842, 749 P.2d 279]]
[emphasis in original]; see also People v. Michaels (2002) 28 Cal.4th 486, 519 [122
Cal.Rptr.2d 285, 49 P.3d 1032] [defendant killed for friend to receive insurance
proceeds].)
Financial Gain Need Not Be Cash
“[A] murder for the purpose of avoiding a debt is a murder for financial gain
. . . .” (People v. Edelbacher (1989) 47 Cal.3d 983, 1025 [254 Cal.Rptr. 586, 766
P.2d 1] [avoidance of child support payments]; see also People v. Silberman (1989)
212 Cal.App.3d 1099, 1114–1115 [261 Cal.Rptr. 45] [prevent discovery of
embezzlement].) “A murder for purposes of eliminating a business competitor is a
murder for financial gain . . . .” (People v. McLead (1990) 225 Cal.App.3d 906,
918 [276 Cal.Rptr. 187] [elimination of rival drug dealer].) “[I]t makes little
difference whether the coin of the bargain is money or something else of value: the
vice of the agreement is the same, the calculated hiring of another to commit
premeditated murder.” (People v. Padilla (1995) 11 Cal.4th 891, 933 [47
Cal.Rptr.2d 426, 906 P.2d 388] [payment in drugs sufficient].)
Murder for Hire: Hirer Need Not Receive Financial Gain
[W]hen a person commits murder for hire, the one who did the hiring is guilty
of the financial gain special circumstance only as an accomplice. (See, e.g.,
People v. Bigelow, supra, 37 Cal.3d at p. 750, fn. 11 [construing the 1978
law].) Moreover, in this case, before defendant could be found subject to the
financial gain special circumstance as an accomplice, the jury was required to
find that defendant had the intent to kill. (See People v. Anderson (1987) 43
Cal.3d 1104, 1142 [240 Cal.Rptr. 585, 742 P.2d 1306] [“. . . section 190.2(b)
lays down a special rule for a certain class of first degree murderers: if the
defendant is guilty as an aider and abettor, he must be proved to have acted
with intent to kill before any special circumstance (with the exception of a
prior murder conviction) can be found true.”].)
(People v. Padilla (1995) 11 Cal.4th 891, 933 [47 Cal.Rptr.2d 426, 906 P.2d 388]
[emphasis in original]; see also People v. Bigelow (1984) 37 Cal.3d 731, 751, fn.
11 [209 Cal.Rptr. 328, 691 P.2d 994]; People v. Freeman (1987) 193 Cal.App.3d
337, 339 [238 Cal.Rptr. 257].)
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