734.Special Circumstances: Murder by Poison (Pen. Code,
The defendant is charged with the special circumstance of murder by
poison [in violation of Penal Code section 190.2(a)(19)].
To prove that this special circumstance is true, the People must prove
1. The defendant intended to kill
2. The defendant killed by
the administration of poison.
[Poison is a substance, applied externally to the body or introduced into
the body, that can kill by its own inherent qualities.]
[ is a poison.]
New January 2006
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].)
Give the bracketed deﬁnition of poison if there is a dispute over whether the
substance is a poison. Give the bracketed paragraph stating that the substance is a
poison if the parties agree that the substance is a poison.
• Special Circumstance. Pen. Code, § 190.2(a)(19).
• Special Circumstance Is Constitutional. People v. Catlin (2001) 26 Cal.4th
81, 159 [109 Cal.Rptr.2d 31, 26 P.3d 357].
• Poison Deﬁned. People v. Van Deleer (1878) 53 Cal. 147, 149.
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 446.
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[a][iii] (Matthew Bender).