CALCRIM No. 732. Special Circumstances: Murder in Commission of Felony - Arson With Intent to Kill (Pen. Code, § 190.2(a)(17))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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732.Special Circumstances: Murder in Commission of
Felony - Arson With Intent to Kill (Pen. Code, § 190.2(a)(17))
The defendant is charged with the special circumstance of intentional
murder while engaged in the commission of arson that burned an
(inhabited structure/[or] inhabited property) [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)
arson that burned an (inhabited structure/[or] inhabited
property);
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) arson that
burned an (inhabited structure/[or] inhabited property);
<Give element 3 if defendant did not personally commit or attempt
arson.>
[3. If the defendant did not personally commit [or attempt to
commit] arson, then another perpetrator, (whom the defendant
was aiding and abetting/ [or] with whom the defendant
conspired), personally committed [or attempted to commit] arson
that burned an (inhabited structure/[or] inhabited property);]
(3/4). The commission [or attempted commission] of the arson 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] arson that burned an (inhabited structure/[or]
inhabited property), 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 arson, aiding
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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 arson was merely part of or incidental to
the commission of that murder.]
New January 2006; Revised August 2013, August 2016, September 2019
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 arson 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
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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 at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [35 Cal.Rptr.
401]; People v. Cervantes (2001) 26 Cal.4th 860, 865-874 [111 Cal.Rptr.2d 148, 29
P.3d 225].) Because causation is likely to be an issue in any case where this
instruction is given, the committee has included the paragraph that begins with “An
act causes death if.” If there is evidence of multiple potential causes, the court
should also give the bracketed paragraph that begins with “There may be more than
one cause of death.” (People v. Sanchez (2001) 26 Cal.4th 834, 845-849 [111
Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135].)
If the prosecution’s theory is that the defendant committed or attempted to commit
arson, 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 arson.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit arson, 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 arson 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. 1502, Arson: Inhabited Structure or Property.
AUTHORITY
Special Circumstance. Pen. Code, § 190.2(a)(17) (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).
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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][b] (Matthew Bender).
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