CALCRIM No. 721. Special Circumstances: Multiple Murder Convictions (Same Case) (Pen. Code, § 190.2(a)(3))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
721.Special Circumstances: Multiple Murder Convictions (Same
Case) (Pen. Code, § 190.2(a)(3))
The defendant is charged with the special circumstance of having been
convicted of more than one murder in this case [in violation of Penal
Code section 190.2(a)(3)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant has been convicted of at least one charge of first
degree murder in this case;
AND
2. The defendant has also been convicted of at least one additional
charge of either first or second degree murder in this case.
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 court must submit the multiple-murder special
circumstance to the jury unless the defendant has specifically waived jury trial on
the special circumstance. (People v. Marshall (1996) 13 Cal.4th 799, 850 [55
Cal.Rptr.2d 347, 919 P.2d 1280].)
Intent to kill is not required for the actual killer but is required for an accomplice. If
the evidence raises the issue of accomplice liability, the court has a sua sponte duty
to instruct on that issue. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) Give CALCRIM No. 702, Special Circumstances:
Intent Requirement for Accomplice After June 5, 1990 - Other Than Felony Murder.
If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special
Circumstances: Intent Requirement for Accomplice Before June 6, 1990.
In a case in which the prosecution seeks the death penalty, only one special
circumstance of multiple murder may be alleged. (People v. Harris (1984) 36 Cal.3d
36, 67 [201 Cal.Rptr. 782, 679 P.2d 433]; People v. Anderson (1987) 43 Cal.3d
1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(3).
• One Special Circumstance May Be Alleged When Death Penalty Sought.
People v. Harris (1984) 36 Cal.3d 36, 67 [201 Cal.Rptr. 782, 679 P.2d 433];
469
People v. Anderson (1987) 43 Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d
1306].
• Must Submit to Jury. People v. Marshall (1996) 13 Cal.4th 799, 850 [55
Cal.Rptr.2d 347, 919 P.2d 1280].
• Intent to Kill Not Required for Actual Killer. People v. Anderson (1987) 43
Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].
RELATED ISSUES
Applies to Killing of Woman and Fetus
Application of the multiple-murder special circumstance to the killing of a woman
and her unborn fetus is constitutional. (People v. Dennis (1998) 17 Cal.4th 468, 510
[71 Cal.Rptr.2d 680, 950 P.2d 1035].)
One Count of First Degree Murder Required
The defendant must be convicted of one count of first degree murder for this special
circumstance to apply. (People v. Williams (1988) 44 Cal.3d 883, 923 [245 Cal.Rptr.
336, 751 P.2d 395]; People v. Cooper (1991) 53 Cal.3d 771, 828 [281 Cal.Rptr. 90,
809 P.2d 865].) However, the additional murder or murders may be second degree.
(See People v. Miller (1990) 50 Cal.3d 954, 995 [269 Cal.Rptr. 492, 790 P.2d
1289].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 520.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[3] (Matthew Bender).
CALCRIM No. 721 HOMICIDE
470

© Judicial Council of California.