CALCRIM No. 729. Special Circumstances: Murder Because of Race, Religion, or Nationality (Pen. Code, § 190.2(a)(16))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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729.Special Circumstances: Murder Because of Race, Religion,
or Nationality (Pen. Code, § 190.2(a)(16))
The defendant is charged with the special circumstance of murder
committed because of the deceased’s (race[,]/ color[,]/ religion[,]/
nationality[,]/ [or] country of origin) [in violation of Penal Code section
190.2(a)(16)].
To prove that this special circumstance is true, the People must prove
that the defendant intended to kill because of the deceased person’s
(race[,]/ color[,]/ religion[,]/ nationality[,]/ [or] country of origin).
[If the defendant had more than one reason to (commit[,]/ participate
in[,]/ [or] aid and abet) the murder, the deceased person’s (race[,]/
color[,]/ religion[,]/ nationality[,]/ [or] country of origin) must have been
a substantial factor motivating the defendant’s conduct. A substantial
factor is more than a trivial or remote factor, but it does not need to be
the only factor that motivated the defendant.]
New January 2006; Revised March 2017
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].)
Give the bracketed paragraph if there is evidence that the defendant had more than
one reason to commit the murder. (In re M.S. (1995) 10 Cal.4th 698, 719-720 [42
Cal.Rptr.2d 355, 896 P.2d 1365].)
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this special circumstance. (See People v. Valenti (2016) 243 Cal.App.4th
1140, 1165 [197 Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121,
1126-1127 [38 Cal.Rptr.2d 335].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(16).
• Special Circumstance Constitutional. People v. Sassounian (1986) 182
Cal.App.3d 361, 413 [226 Cal.Rptr. 880]; People v. Talamantez (1985) 169
Cal.App.3d 443, 469 [215 Cal.Rptr. 542].
• “Because of” Defined. Pen. Code, § 190.03(c); People v. Superior Court
(Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896 P.2d 1387]; In re
M.S. (1995) 10 Cal.4th 698, 719-720 [42 Cal.Rptr.2d 355, 896 P.2d 1365].
461
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 531.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[16], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][a][ii] (Matthew Bender).
CALCRIM No. 729 HOMICIDE
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© Judicial Council of California.
