CALCRIM No. 733. Special Circumstances: Murder With Torture (Pen. Code, § 190.2(a)(18))
Judicial Council of California Criminal Jury Instructions (2024 edition)
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733.Special Circumstances: Murder With Torture (Pen. Code,
§ 190.2(a)(18))
The defendant is charged with the special circumstance of murder
involving the infliction of torture [in violation of Penal Code section
190.2(a)(18)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill <insert name of
decedent>;
2. The defendant also intended to inflict extreme physical pain and
suffering on <insert name of decedent> while that
person was still alive;
3. The defendant intended to inflict such pain and suffering on
<insert name of decedent> for the calculated purpose
of revenge, extortion, persuasion, or any other sadistic reason;
3. AND
3. <Alternative A - on or after June 6, 1990>
[4. The defendant did an act involving the infliction of extreme
physical pain and suffering on <insert name of
decedent>.]
[4. <Alternative B - before June 6, 1990>
[4. The defendant in fact inflicted extreme physical pain on
<insert name of decedent>.]
There is no requirement that the person killed be aware of the pain.
New January 2006; Revised February 2013, September 2023
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].)
In element 4, always give alternative 4A unless the homicide occurred prior to June
6, 1990. (People v. Davenport (1985) 41 Cal.3d 247, 271 [221 Cal.Rptr. 794, 710
P.2d 861].) If the homicide occurred prior to June 6, 1990, give alternative 4B. For
homicides after that date, alternative 4B should not be given. (People v. Crittenden
(1994) 9 Cal.4th 83, 140, fn. 14 [36 Cal.Rptr.2d 474, 885 P.2d 887].)
480
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(18).
• Must Specifically Intend to Torture. People v. Davenport, supra, 41 Cal.3d at pp.
265-266; People v. Pensinger (1991) 52 Cal.3d 1210, 1255 [278 Cal.Rptr. 640,
805 P.2d 899].
• Causation Not Required. People v. Crittenden, supra, 9 Cal.4th at pp. 141-142.
• Pain Not an Element. People v. Davenport, supra, 41 Cal.3d at p. 271; People v.
Crittenden, supra, 9 Cal.4th at p. 140, fn. 14.
• Intent to Torture Need Not be Deliberate and Premeditated. People v. Cole
(2004) 33 Cal.4th 1158, 1227-1228 [17 Cal.Rptr.3d 532, 95 P.3d 811].
• Prolonged Pain Not Required. People v. Cole, supra, 33 Cal.4th at pp.
1227-1228.
• Spatial and Temporal Nexus. People v. Gonzales (2012) 54 Cal.4th 1234, 1278
[144 Cal.Rptr.3d 757, 281 P.3d 834].
RELATED ISSUES
Causation Not Required for Special Circumstance
“[T]he prosecution was not required to prove that the acts of torture inflicted upon
[the victim] were the cause of his death” in order to prove the torture-murder
special circumstance. (People v. Crittenden, supra, 9 Cal.4th at p. 142.) Causation is
required for first degree murder by torture. (Ibid.) However, the torture-murder
special circumstance only: “requires ‘some proximity in time [and] space between
the murder and torture.’ ” (People v. Bemore (2000) 22 Cal.4th 809, 843 [94
Cal.Rptr.2d 840, 996 P.2d 1152] [quoting People v. Barnett (1998) 17 Cal.4th 1044,
1161 [74 Cal.Rptr.2d 121, 954 P.2d 384]].) It applies: “where the death involved the
infliction of torture, regardless of whether the acts constituting the torture were the
cause of death.” (People v. Jennings (2010) 50 Cal.4th 616, 647 [114 Cal.Rptr.3d
133, 237 P.3d 474].) The defendant must intend to kill during the torture, but “not
necessarily at the moment of a particular fatal blow.” (People v. Superior Court
(Fernandez) (2023) 88 Cal.App.5th 26, 39, fn. 7 [304 Cal.Rptr.3d 488].)
Instruction on Voluntary Intoxication
“[A] court should instruct a jury in a torture-murder case, when evidence of
intoxication warrants it, that intoxication is relevant to the specific intent to inflict
cruel suffering.” (People v. Pensinger, supra, 52 Cal.3d at p. 1242; see CALCRIM
No. 625, Voluntary Intoxication: Effects on Homicide Crimes.)
Pain Not an Element
As with first degree murder by torture, all that is required for the special
circumstance is the calculated intent to cause pain for the purpose of revenge,
extortion, persuasion, or any other sadistic purpose. Prior to June 6, 1990, the
special circumstance stated: “torture requires proof of the infliction of extreme
physical pain.” (Pre-June 6, 1990, Pen. Code, § 190.2(a)(18).) Proposition 115
HOMICIDE CALCRIM No. 733
481
eliminated this language. Thus, for all homicides after June 6, 1990, there is no
requirement under the special circumstance that the victim actually suffer pain.
(People v. Pensinger, supra, 52 Cal.3d at p. 1239; People v. Davenport, supra, 41
Cal.3d at p. 271; People v. Crittenden, supra, 9 Cal.4th at p. 140, fn. 14.)
Deliberate and Premeditated Intent to Inflict Pain Not Required
“[P]remeditated and deliberate intent to torture is not an element of the torture-
murder special circumstance.” (People v. Cole, supra, 33 Cal.4th at p. 1227 [italics
omitted].)
Prolonged Pain Not Required
“We have held that by enacting the torture-murder special circumstance statute
(§ 190.2, subd. (a)(18)), the electorate meant to foreclose any requirement that the
defendant be proved to have intended to inflict prolonged pain.” (People v. Cole,
supra, 33 Cal.4th at p. 1228 [italics in original, citation and internal quotation marks
omitted].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 525-526.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[18], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][v] (Matthew Bender).
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