California Criminal Jury Instructions (CALCRIM) (2017)

731. Special Circumstances: Murder in Commission of Felony - Kidnapping With Intent to Kill, Pen. Code, § 190.2(a)(17) (After March 8, 2000)

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731.Special Circumstances: Murder in Commission of
Felony—Kidnapping With Intent to Kill After March 8, 2000 (Pen.
Code, § 190.2(a)(17)
The defendant is charged with the special circumstance of intentional
murder while engaged in the commission of kidnapping [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) kidnapping;
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) kidnapping;
<Give element 3 if defendant did not personally commit or attempt
kidnapping.>
[3. If the defendant did not personally commit [or attempt to
commit] kidnapping, then another perpetrator, (whom the
defendant was aiding and abetting/ [or] with whom the
defendant conspired), personally committed [or attempted to
commit] kidnapping;]
(3/4). (The defendant/ <insert name or description of person
causing death if not defendant>) did an act that was a substantial
factor in causing the death of another person;
AND
(4/5). The defendant intended that the other person be killed.
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] kidnapping, please refer to the separate
instructions that I (will give/have given) you on that crime. [To decide
whether the defendant aided and abetted the 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 the 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.
<Make certain that all appropriate instructions on underlying kidnapping,
aiding and abetting, and conspiracy are given.>
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An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all
the circumstances established by the evidence.
There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is
more than a trivial or remote factor. However, it does not need to be the
only factor that causes the death.
[If all the listed elements are proved, you may find this special
circumstance true even if the defendant intended solely to commit
murder and the commission of kidnapping was merely part of or
incidental to the commission of that murder.]
New January 2006; Revised August 2013, August 2016
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 the kidnapping alleged. (People v. Cain (1995) 10 Cal.4th 1, 36 [40
Cal.Rptr.2d 481, 892 P.2d 1224].)
Do not give CALCRIM No. 703, Special Circumstances: Intent requirement for
Accomplice After June 5, 1990, together with this instruction. See People v. Odom
(2016) 244 Cal.App.4th 237, 256–257 [197 Cal.Rptr.3d 774].
Subparagraph (M) of Penal Code section 190.2(a)(17) eliminates the application of
People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], to
intentional murders during the commission of kidnapping or arson of an inhabited
structure. The statute may only be applied to alleged homicides after the effective
date, March 8, 2000. This instruction may be given alone or with CALCRIM No.
730, Special Circumstances: Murder in Commission of Felony, Pen. Code,
§ 190.2(a)(17).
For the standard felony-murder special circumstance, it is not necessary for the
actual killer to intend to kill. (Pen. Code, § 190.2(b).) However, an accomplice who
is not the actual killer must either act with intent to kill or be a major participant
and act with reckless indifference to human life. (Pen. Code, § 190.2(d).)
Subparagraph (M) of Penal Code section 190.2(a)(17) does not specify whether the
defendant must personally intend to kill or whether accomplice liability may be
based on an actual killer who intended to kill even if the defendant did not. (See
Pen. Code, § 190.2(a)(17)(M).) This instruction has been drafted to require that the
CALCRIM No. 731 HOMICIDE
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defendant intend to kill, whether the defendant is an accomplice or the actual killer.
If the evidence raises the potential for accomplice liability and the court concludes
that the accomplice need not personally intend to kill, then the court must modify
element 5 to state that the person who caused the death intended to kill. In such
cases, the court also has a sua sponte duty give CALCRIM No. 703, Special
Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder, Pen. Code, § 190.2(a)(17).
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
kidnapping, 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 kidnapping.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit kidnapping, 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 kidnapping and on aiding and abetting and/or
conspiracy with this instruction.
When giving this instruction with CALCRIM No. 730, give the final bracketed
paragraph.
Related Instructions
CALCRIM No. 1200, Kidnapping: For Child Molestation.
CALCRIM No. 1201, Kidnapping: Child or Person Incapable of Consent.
CALCRIM No. 1202, Kidnapping: For Ransom, Reward, or Extortion.
CALCRIM No. 1203, Kidnapping: For Robbery, Rape, or Other Sex Offenses.
CALCRIM No. 1204, Kidnapping During Carjacking.
CALCRIM No. 1215, Kidnapping.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(17)(B), (H) & (M).
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 532–533.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[17], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.01[2][b], 142.14[3] (Matthew Bender).
HOMICIDE CALCRIM No. 731
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