CALCRIM No. 730. Special Circumstances: Murder in Commission of Felony (Pen. Code, § 190.2(a)(17))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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730.Special Circumstances: Murder in Commission of Felony
(Pen. Code, § 190.2(a)(17))
The defendant is charged with the special circumstance of murder
committed while engaged in the commission of <insert
felony or felonies from Pen. Code, § 190.2(a)(17)> [in violation of Penal
Code section 190.2(a)(17)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant (committed [or attempted to commit][,]/ [or] aided
and abetted[,]/ [or] was a member of a conspiracy to commit)
<insert felony or felonies from Pen. Code,
§ 190.2(a)(17)>;
2. The defendant (intended to commit[,]/ [or] intended to aid and
abet the perpetrator in committing[,]/ [or] intended that one or
more of the members of the conspiracy commit)
<insert felony or felonies from Pen. Code, § 190.2(a)(17)>;
<Give element 3 if defendant did not personally commit or attempt
felony.>
[3. If the defendant did not personally commit [or attempt to
commit] <insert felony or felonies from Pen. Code,
§ 190.2(a)(17)>, then a perpetrator, (whom the defendant was
aiding and abetting before or during the killing/ [or] with whom
the defendant conspired), personally committed [or attempted to
commit] <insert felony or felonies from Pen. Code,
§ 190.2(a)(17)>;]
AND
(3/4). (The defendant/ <insert name or description of
person causing death if not defendant>) did an act that caused the
death of another person.
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] <insert felony or felonies from Pen.
Code, § 190.2(a)(17)>, please refer to the separate instructions that I (will
give/have given) you on (that/those) crime[s]. [To decide whether the
defendant aided and abetted a crime, please refer to the separate
instructions that I (will give/have given) you on aiding and abetting.] [To
decide whether the defendant was a member of a conspiracy to commit a
crime, please refer to the separate instructions that I (will give/have
given) you on conspiracy.] You must apply those instructions when you
decide whether the People have proved this special circumstance.
491
<Make certain that all appropriate instructions on all underlying felonies,
aiding and abetting, and conspiracy are given.>
[The defendant must have (intended to commit[,]/ [or] aided and
abetted/ [or] been a member of a conspiracy to commit) the (felony/
felonies) of <insert felony or felonies from Pen. Code,
§ 190.2(a)(17)> before or at the time of the act causing the death.]
[In addition, in order for this special circumstance to be true, the People
must prove that the defendant intended to commit <insert
felony or felonies from Pen. Code, § 190.2(a)(17)> independent of the
killing. If you find that the defendant only intended to commit murder
and the commission of <insert felony or felonies from Pen.
Code, § 190.2(a)(17)> was merely part of or incidental to the commission
of that murder, then the special circumstance has not been proved.]
New January 2006; Revised August 2006, April 2008, 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 court also has a sua sponte duty to instruct on the
elements of any felonies alleged. (People v. Cain (1995) 10 Cal.4th 1, 36 [40
Cal.Rptr.2d 481, 892 P.2d 1224].)
If the evidence raises the potential for accomplice liability, the court has a sua
sponte duty to instruct on that issue. Give CALCRIM No. 703, Special
Circumstances: Intent Requirement for Accomplice After June 5, 1990 - Felony
Murder, Pen. Code, § 190.2(a)(17). If the homicide occurred on or before June 5,
1990, give CALCRIM No. 701, Special Circumstances: Intent Requirement for
Accomplice Before June 6, 1990.
If the facts raise an issue whether the homicidal act caused the death, the court has
asua sponte duty to give CALCRIM No. 240, Causation.
If the prosecution’s theory is that the defendant committed or attempted to commit
the underlying felony, then select “committed [or attempted to commit]” in element
1 and “intended to commit” in element 2. In addition, in the paragraph that begins
with “To decide whether,” select “the defendant” in the first sentence. Give all
appropriate instructions on any underlying felonies.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit the felony, select one or both of these options in element 1 and the
corresponding intent requirement in element 2. Give bracketed element 3. In
addition, in the paragraph that begins with “To decide whether,” select “the
perpetrator” in the first sentence. Give the second and/or third bracketed sentences.
Give all appropriate instructions on any underlying felonies and on aiding and
CALCRIM No. 730 HOMICIDE
492
abetting and/or conspiracy with this instruction.
If there is evidence that the defendant did not form the intent to commit the felony
until after the homicide, the defendant is entitled on request to an instruction
pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124-127 [287 P.2d
497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].)
Give the bracketed sentence that begins with “The defendant must have (intended to
commit.” For an instruction specially tailored to robbery-murder cases, see People v.
Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 706, 789 P.2d 887].
In addition, the court must give the final bracketed paragraph stating that the felony
must be independent of the murder if the evidence supports a reasonable inference
that the felony was committed merely to facilitate the murder. (People v. Green
(1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Clark (1990) 50
Cal.3d 583, 609 [268 Cal.Rptr. 399, 789 P.2d 127]; People v. Kimble (1988) 44
Cal.3d 480, 501 [244 Cal.Rptr. 148, 749 P.2d 803]; People v. Navarette (2003) 30
Cal.4th 458, 505 [133 Cal.Rptr.2d 89, 66 P.3d 1182].)
Proposition 115 added Penal Code section 190.41, eliminating the corpus delicti rule
for the felony-murder special circumstance. (Pen. Code, § 190.41; Tapia v. Superior
Court (1991) 53 Cal.3d 282, 298 [279 Cal.Rptr. 592, 807 P.2d 434].) If, however,
the alleged homicide predates the effective date of the statute (June 6, 1990), then
the court must modify this instruction to require proof of the corpus delicti of the
underlying felony independent of the defendant’s extrajudicial statements. (Tapia v.
Superior Court, supra, 53 Cal.3d at p. 298.)
If the alleged homicide occurred between 1983 and 1987 (the window of time
between Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [197 Cal.Rptr. 79, 672
P.2d 862] and People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585,
742 P.2d 1306]), then the prosecution must also prove intent to kill on the part of
the actual killer. (People v. Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802,
58 P.3d 931]; People v. Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6
P.3d 150].) The court should then modify this instruction to specify intent to kill as
an element.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(17).
• Specific Intent to Commit Felony Required. People v. Valdez (2004) 32 Cal.4th
73, 105 [8 Cal.Rptr.3d 271, 82 P.3d 296].
• Provocative Act Murder. People v. Briscoe (2001) 92 Cal.App.4th 568, 596
[112 Cal.Rptr.2d 401] [citing People v. Kainzrants (1996) 45 Cal.App.4th 1068,
1081 [53 Cal.Rptr.2d 207]].
• Concurrent Intent. People v. Mendoza (2000) 24 Cal.4th 130, 183 [99
Cal.Rptr.2d 485, 6 P.3d 150]; People v. Clark (1990) 50 Cal.3d 583, 608-609
[268 Cal.Rptr. 399, 789 P.2d 127].
• Felony Cannot Be Incidental to Murder. People v. Green (1980) 27 Cal.3d 1,
61 [164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v.
HOMICIDE CALCRIM No. 730
493
Hall (1986) 41 Cal.3d 826, 834 fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; People v.
Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6 P.3d 150].
• Instruction on Felony as Incidental to Murder. People v. Kimble (1988) 44
Cal.3d 480, 501 [244 Cal.Rptr. 148, 749 P.2d 803]; People v. Clark (1990) 50
Cal.3d 583, 609 [268 Cal.Rptr. 399, 789 P.2d 127]; People v. Navarette (2003)
30 Cal.4th 458, 505 [133 Cal.Rptr.2d 89, 66 P.3d 1182].
• Proposition 115 Amendments to Special Circumstance. Tapia v. Superior Court
(1991) 53 Cal.3d 282, 298 [279 Cal.Rptr. 592, 807 P.2d 434].
RELATED ISSUES
Applies to Felony Murder and Provocative Act Murder
“The fact that the defendant is convicted of murder under the application of the
provocative act murder doctrine rather than pursuant to the felony-murder doctrine
is irrelevant to the question of whether the murder qualified as a special-
circumstances murder under former section 190.2, subdivision (a)(17). The statute
requires only that the murder be committed while the defendant was engaged in the
commission of an enumerated felony.” (People v. Briscoe (2001) 92 Cal.App.4th
568, 596 [112 Cal.Rptr.2d 401] [citing People v. Kainzrants (1996) 45 Cal.App.4th
1068, 1081 [53 Cal.Rptr.2d 207]].)
Concurrent Intent to Kill and Commit Felony
“Concurrent intent to kill and to commit an independent felony will support a
felony-murder special circumstance.” (People v. Mendoza (2000) 24 Cal.4th 130,
183 [99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Clark (1990) 50 Cal.3d 583,
608-609 [268 Cal.Rptr. 399, 789 P.2d 127].)
Multiple Special Circumstances May Be Alleged
The defendant may be charged with multiple felony-related special circumstances
based on multiple felonies committed against one victim or multiple victims of one
felony. (People v. Holt (1997) 15 Cal.4th 619, 682 [63 Cal.Rptr.2d 782, 937 P.2d
213]; People v. Andrews (1989) 49 Cal.3d 200, 225-226 [260 Cal.Rptr. 583, 776
P.2d 285].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 532-534, 536.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[17] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][b] (Matthew Bender).
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