Return to CALJIC Part 5-8 – Contents
F 8.81.18 n1 Torture Special Circumstance: Intent To Kill (PC 190.2(a)(18)).
Intent to kill remains an element of the torture special circumstance per PC 190.2(a)(18).
F 8.81.18 n2 Torture Special Circumstance: Victim Must Be Alive (PC 190.2(a)(18)).
As to the requirement that the victim be alive, see FORECITE F 8.24a.
NOTES
Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)
F 8.81.18 n3 Torture Special Circumstance: Sadistic Purpose (PC 190.2(a)(18)).
The term “sadistic purpose” as used in the torture murder special circumstance is not unconstitutionally vague under Maynard v. Cartwright (88) 486 US 356, 361 [100 LEd2d 372], and Godfrey v. Georgia (80) 446 US 420, 428 [64 LEd2d 398]; People v. Raley (92) 2 C4th 870, 898-901 [8 CR2d 678].
CAVEAT: This issue has not been addressed by the USSC and therefore should be preserved for federal review.
F 8.81.18 n4 Torture Special: “Sadistic Purpose As Unconstitutionally Vague (PC 190.2(a)(18)).
The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. (U.S. Constitution, 14th Amendment; California Constitution, Art. I, §§ 7,17.) (People v. Mirmiani (81) 30 C3d 375, 382 [178 CR 792].) Moreover, in a capital case, a vague statutory term may also violate the 8th Amendment. (See Godfrey v. Georgia (76) 428 US 153, 189, 206-07 [489 LEd2d 859].)
In People v. Raley (92) 2 C4th 870, 897-902 [8 CR2d 678], the California Supreme Court held that the term “sadistic purpose” is not unconstitutionally vague under the 8th or 14th Amendments. (See also People v. Healy (93) 14 CA4th 1137, 1140-42 [18 CR2d 274].) However, this issue may still be preserved for federal habeas by requesting that the jury not be instructed upon this term on the grounds that it violates the 8th and 14th Amendments. (See also FORECITE F 9.90 n5 discussing unconstitutional vagueness of the terms “extortion”, “cruel” and “torture” as used in PC 206.)
F 8.81.18 n5 Torture Special: Proposition 115 Due Process/Ex Post Facto Issues: “Yoshiato Window” (PC 190.2(a)(18)).
On June 6, 1990, Proposition 115 eliminated the requirement that the defendant actually inflict extreme pain upon the victim. Obviously, this change cannot be applied to crimes committed before June 6, 1990. (Tapia v. Superior Court (91) 53 C3d 282, 297-99 [279 CR 592].)
Moreover, because of the confusion regarding whether Proposition 114 would take precedence over Proposition 115, it may also be argued that Proposition 115 may not be applied to crimes committed before June 25, 1992, when the Supreme Court’s decision in Yoshiato v. Superior Court (92) 2 C4th 978 [9 CR2d 102] clarified the validity of Proposition 115.
There are at least three legal principles upon which such a claim may be made:
1) Due Process/Notice under the State (Art. I § 15) and Federal (14th Amendment) constitutions. (See People v. Green (91) 227 CA3d 692, 698 [278 CR 140].)
2) Ex Post Facto / Due Process principle which preclude the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (88) 205 CA3d 514, 518 [252 CR 418].)
3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175].)
(An even stronger argument applies to the window between the Court of Appeal decision in Yoshiato and the grant of review: 8/5/91 – 10/24/91.) [Additional analysis of “Yoshiato Window” (Phillips and Thoma) published in CACJ Forum Vol. 20 / No. 1, pp. 66-71, is available to FORECITE subscribers. Ask for Article Bank # A-28.]
However, in People v. Superior Court (Clark) (94) 22 CA4th 1541, 1550-51 [28 CR2d 46], the court rejected the argument that the subsequently superseded opinion in Yoshiato raises due process and ex post facto issues regarding crimes committed during the period between issuance of the Yoshiato appellate opinion and acceptance of the case for review by the California Supreme Court. The argument was rejected on the basis that the Yoshiatoopinion was never final and therefore never had any precedential value.
F 8.81.18 n6 No Causation Element For Torture-Murder Special Circumstance.
In People v. Crittenden (94) 9 C4th 83, 141-42 [36 CR2d 474], it was held that the torture-murder special circumstance (PC 190.2(a)(18)) does not require a causal relationship between the acts of torture and death. (See alsoPeople v. Bemore (2000) 22 C4th 809, 842-43 [94 CR2d 840] [unlike PC 189, torture-murder special circumstance does not require causal relationship between tortuous act and the death].)
F 8.81.18 n7 Torture Murder Special Circumstance: Requirement That Murder Was Intentional.
(See FORECITE F 8.81.18 n1.)
F 8.81.18 n8 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 8.81.18 failed to specifically require that the murder was intentional. (See CALJIC History CJ 8.81.18.)
F 8.81.18a
Distinction Between Special Circumstance And PC 189 Torture Eliminated*
(PC 190.2(a)(18))
*See Subsequent History Below
*Modify ¶’s 2 and 3 of CJ 8.81.18 (1991 Revision) to provide as follows [added language is capitalized; deleted language is between <<>>]:
2. [The] [A] defendant <<intended to inflict extreme cruel physical pain and suffering>> HARBORED A WILLFUL, DELIBERATE AND PREMEDITATED INTENT TO INFLICT EXTREME AND PROLONGED PAIN upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose, and
3. <<The defendant did in fact inflict extreme cruel physical pain and suffering upon a living human being no matter how long its duration.>> THE TORTUROUS ACTS WERE COMMITTED WHILE THE VICTIM WAS ALIVE.
Points and Authorities
In People v. Leach (85) 41 C3d 92, 110 [221 CR 826], the Supreme Court recognized that the electorate which enacted PC 190.2(a)(18) intended to incorporate as much of the established judicial meaning of torture as is not inconsistent with the specific language of the initiative. At that time the only specific language differentiating (a)(18) from PC 189 was the second sentence of PC 190.2(a)(18) which required “proof of the infliction of extreme physical pain no matter how long its duration.” (People v. Davenport (85) 41 C3d 247, 271; Morales v. Woodford (9th Cir. 2003) 336 F3d 1136.) This distinction was incorporated into CJ 8.81.18. (Compare CJ 8.24.)
However, Proposition 115 deleted the second sentence of PC 190.2(a)(18). Now there is no difference in statutory language between PC 190.2(a)(18) and PC 189. Accordingly, the elements of torture as defined by CJ 8.24 (e.g., “a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain …”) should now be incorporated into CJ 8.81.18. Similarly, the 3rd element of CJ 8.81.18 requiring the actual infliction of pain “no matter how long its duration” should be deleted.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
SUBSEQUENT HISTORY
The July 1991 CALJIC pocket part modified the torture murder special circumstance instruction in light of Proposition 115’s deletion of the requirement that extreme physical pain be inflicted. However, the CALJIC instruction is still erroneous for failing to include the mens rea for torture murder under PC 189 per People v. Leach 41 C3d at 110, as set forth above.
F 8.81.18b
Modification When Crime Involves Fetal Victim
*Modify CJ 8.81.18 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
F 8.81.18c
Torture Special Circumstance:
Defendant Must Personally Intend To Kill And Torture Victim
(PC 190.2(a)(18))
*Modify CJ 8.81.18, Element 2, as follows [added language is capitalized; deleted language is between << >>]:
2. <<[>>The<<] [A]>> defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose[.] [; and]
Points and Authorities
By referring to a defendant rather than the defendant, CJ 8.81.18 permits the jury to find the special circumstance true without finding that the defendant personally intended to torture–a violation of due process and the right to trial by jury. (See People v. Petznick (2003) 114 CA4th 663.)
The torture-murder special circumstance embodied in PC 190.2(a)(18) authorizes death or life imprisonment without parole where the defendant is convicted of first degree murder and where “[t]he murder was intentional and involved the infliction of torture.”“Proof of a murder committed under the torture-murder special circumstance therefore requires proof of first degree murder, (PC 190.2(a)), [and] proof the defendant intended to kill and to torture the victim (PC 190.2(a)(18)). . . .” (People v. Davenport (85) 41 C3d 247, 271, emphasis added by Petznick; see also Morales v. Woodford (9th Cir. 2003) 336 F3d 1136, 1145-1146 [“without a jury determination that the defendant intended to torture, the distinction between murders where the victim did and did not feel extreme pain might `have nothing to do with the mental state or culpability of the defendant and would not seem to provide a principled basis for distinguishing capital murder from any other murder’” (quoting Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1320)])
In People v. Petznick (2003) 114 CA4th 663, the Attorney General argued that the instruction was not erroneous since defendant was the only defendant at trial. Finding prejudicial error, the Court concluded that, while that might have been so, the jury was aware of the participation of three other persons. “The other three participants, although not technically defendants, were referred to as defendants throughout the instructions. Thus, the jury could easily have understood a defendant as referring to any one of the four participants.” (Petznick, 114 CA4th at 686.)
NOTE: This is an example of the need to provide “application language” which explicitly informs the jury what the defendant must have done. (See e.g., FORECITE 7.20b.)