731. Special Circumstances: Murder in Commission of Felony - Kidnapping With Intent to Kill, Pen. Code, § 190.2(a)(17) (After March 8, 2000)
The defendant is charged with the special circumstance of intentional murder while engaged in the commission of kidnapping.
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;
(4/5). The defendant intended that the other person be killed;
(5/6). The act causing the death and the kidnapping [or attempted kidnapping] were part of one continuous transaction(;/.)
<Give element 7 if the court concludes it must instruct on causal relationship between kidnapping and death; see Bench Notes.>
(6/7). There was a logical connection between the act causing the death and the kidnapping [or attempted kidnapping]. The connection between the fatal act and the kidnapping [or attempted kidnapping] must involve more than just their occurrence at the same time and place.]
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.>
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.]
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, 9941 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].)
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 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 causation is an issue, the court has a sua 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.
Bracketed element 7 is based on People v. Cavitt (2004) 33 Cal.4th 187, 193 [14 Cal.Rptr.3d 281, 91 P.3d 222]. In Cavitt, the Supreme Court clarified the liability of a nonkiller under the felony-murder rule when a cofelon commits a killing. The court held that "the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Ibid. [italics in original].) The majority concluded that the court has no sua sponte duty to instruct on the necessary causal connection. (Id. at pp. 203-204.) In concurring opinions, Justice Werdegar, joined by Justice Kennard, and Justice Chin expressed the view that the jury should be instructed on the necessary causal relationship. (Id. at pp. 212-213.) The court should give bracketed element 7 if the evidence raises an issue over the causal connection between the felony and the killing. In addition, the court may give this bracketed element at its discretion in any case in which this instruction is given. If the prosecution alleges that the defendant did not commit the felony but aided and abetted or conspired to commit the felony, the committee recommends giving bracketed element 7. (See discussion of conspiracy liability in the Related Issues section of CALCRIM No. 540B, Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act.)
When giving this instruction with CALCRIM No. 730, give the final bracketed paragraph.
The Supreme Court has not decided whether the trial court has a sua sponte duty to instruct on the meaning of "one continuous transaction." (See People v. Cavitt (2004) 33 Cal.4th 187, 204 [14 Cal.Rptr.3d 281, 91 P.3d 222].) If the evidence raises an issue of whether the act causing the death and the felony were part of "one continuous transaction," the committee recommends that the court also give CALCRIM No. 549, Felony Murder: One Continuous Transaction—Defined.
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.
Special Circumstance. Pen. Code, § 190.2(a)(17)(B), (H) & (M).
Continuous Transaction Requirement. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.3d 281, 91 P.3d 222]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 88 [17 Cal.Rptr.3d 710, 96 P.3d 30] [applying rule to special circumstance]; People v. Hernandez (1988) 47 Cal.3d 315, 348 [253 Cal.Rptr. 199, 763 P.2d 1289]; People v. Fields (1983) 35 Cal.3d 329, 364-368 [197 Cal.Rptr. 803, 673 P.2d 680]; People v. Ainsworth (1988) 45 Cal.3d 984, 1025-1026 [248 Cal.Rptr. 568, 755 P.2d 1017].
Logical Connection Required for Liability of Nonkiller. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.3d 281, 91 P.3d 222].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 450.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13, 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01[b], 142.14 (Matthew Bender).
(New January 2006)