California Criminal Jury Instructions (CALCRIM) (2017)

725. Special Circumstances: Murder of Witness, Pen. Code, § 190.2(a)(10)

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725.Special Circumstances: Murder of Witness (Pen. Code,
§ 190.2(a)(10))
The defendant is charged with the special circumstance of murder of a
witness [in violation of Penal Code section 190.2(a)(10)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill <insert name of
decedent>;
2. <insert name of decedent> was a witness to a crime;
3. The killing was not committed during the commission [or
attempted commission] of the crime to which
<insert name of decedent> was a witness;
AND
4. The defendant intended that <insert name of
decedent> be killed (to prevent (him/her) from testifying in a
(criminal/ [or] juvenile) proceeding/ [or] in retaliation for (his/
her) testimony in a (criminal/ [or] juvenile) proceeding).
[A killing is committed during the commission [or attempted
commission] of a crime if the killing and the crime are part of one
continuous transaction. The continuous transaction may occur over a
period of time or in more than one location.]
New January 2006; Revised August 2013
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 last bracketed paragraph should be given if there is evidence that the killing
and the crime witnessed were part of one continuous transaction. The court may
choose to give further instruction on one continuous transaction on request. (See
People v. Silva (1988) 45 Cal.3d 604, 631 [247 Cal.Rptr. 573, 754 P.2d 1070].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(10).
Continuous Transaction. People v. Clark (2011) 52 Cal.4th 856, 1015–1016
[131 Cal.Rptr.3d 225, 261 P.3d 243]; People v. Silva (1988) 45 Cal.3d 604, 631
450
0244
[247 Cal.Rptr. 573, 754 P.2d 1070]; People v. Beardslee (1991) 53 Cal.3d 68,
95 [279 Cal.Rptr. 276, 806 P.2d 1311].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 540.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[10], 87.14 (Matthew Bender).
RELATED ISSUES
Purpose of Killing
In order for this special circumstance to apply, the defendant must kill the witness
for the purpose of preventing him or her from testifying or in retaliation for his or
her testimony. (People v. Stanley (1995) 10 Cal.4th 764, 800 [42 Cal.Rptr.2d 543,
897 P.2d 481].) However, this does not have to be the sole or predominant purpose
of the killing. (Ibid.; People v. Sanders (1990) 51 Cal.3d 471, 519 [273 Cal.Rptr.
537, 797 P.2d 561].)
Victim Does Not Have to Be An Eyewitness or Important Witness
“[N]othing in the language of the applicable special circumstance or in our
decisions applying this special circumstance supports the suggestion that the special
circumstance is confined to the killing of an ‘eyewitness,’ as opposed to any other
witness who might testify in a criminal proceeding.” (People v. Jones (1996) 13
Cal.4th 535, 550 [54 Cal.Rptr.2d 42, 917 P.2d 1165].) “It is no defense to the
special circumstance allegation that the victim was not an important witness in the
criminal proceeding, so long as one of the defendant’s purposes was to prevent the
witness from testifying.” (People v. Jenkins (2000) 22 Cal.4th 900, 1018 [95
Cal.Rptr.2d 377, 997 P.2d 1044]; see also People v. Bolter (2001) 90 Cal.App.4th
240, 242–243] [special circumstance applied to retaliation for testifying where
witness’s actual testimony was “innocuous”].)
Defendant Must Believe Victim Will Be Witness
“[S]ection 190.2, subd. (a)(10) is applicable if defendant believes the victim will be
a witness in a criminal prosecution, whether or not such a proceeding is pending or
about to be initiated.” (People v. Jenkins (2000) 22 Cal.4th 900, 1018 [95
Cal.Rptr.2d 377] [emphasis in original]; see also People v. Weidert (1985) 39
Cal.3d 836, 853 [218 Cal.Rptr. 57, 705 P.2d 380] [abrogated by statutory
amendment]; People v. Sanders (1990) 51 Cal.3d 471, 518 [273 Cal.Rptr. 537, 797
P.2d 561].)
“Continuous Transaction” in Context of Witness Special Circumstance
“[T]o establish one continuous criminal transaction, the time-lag between the first
and second killing does not matter so much as whether the defendant shows a
common criminal intent toward all the victims upon the initiation of the first
criminal act. When that criminal intent toward all victims is present, the criminal
transaction does not conclude until the killing of the final victim.” (People v. San
Nicolas (2004) 34 Cal.4th 614, 655 [21 Cal.Rptr.3d 612, 101 P.3d 509].)
HOMICIDE CALCRIM No. 725
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