Return to CALJIC Part 5-8 – Contents
F 8.67 n1 Improper Instruction That Second Degree Attempted Murder Is A Lesser-Included Of First Degree Attempted Murder.
ALERT: See FORECITE F 8.67 n2 [Federal Constitution Requires Treatment Of Premeditated Attempted Murder As Separate Offense Rather Than Enhancement].
The California Supreme Court has held that PC 664(a), which prescribes life imprisonment for an attempt to commit murder which is “willful, deliberate and premeditated,” does not create a lesser/greater offense relationship between second degree attempted murder and first degree attempted murder. (See People v. Bright (96) 12 C4th 652, 669 [49 CR2d 732]; see also FORECITE LIO III(C); but see FORECITE F 8.67 n2.) Accordingly, it is error for the trial court to instruct the jury that “Attempted Unpremeditated Murder” is a lesser offense included within “Attempted Premeditated Murder.” [See Brief Bank # B-702 for additional briefing on this issue.]
F 8.67 n2 Federal Constitution Requires Treatment Of Premeditated Attempted Murder As Separate Offense Rather Than Enhancement.
In People v. Bright (96) 12 C4th 652, 669 [49 CR2d 732] the California Supreme Court held that PC 664(a) did not create a lesser/greater offense relationship between second degree attempted murder and first degree attempted murder. However, the constitutional viability of this holding has been undermined by Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; People v. Seel (2004) 34 C4th 535, 549-50 [Apprendi compels the conclusion that [PC] 664(a) constitutes an element of the offense]; see also id. at *30, n 7. In Apprendi, the court concluded that “diminishment of the jury’s significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled.” (119 SCt at 1226.) And in Apprendi the court expressly held that it would violate the 6th and 14th Amendment right to trial by jury and due process to allow imposition of a sentencing enhancement which significantly raises the sentencing range to which the defendant is exposed without requiring the necessary elements of the enhancement to be found beyond a reasonable doubt by a jury. (Apprendi, 120 SCt at 2363.) Hence, Justice Kennard’s dissents in People v. Wims (95) 10 C4th 293, 320-29 [41 CR2d 241] and People v. Bright (96) 12 C4th 652, 683-93 [49 CR2d 732] were correct. (See People v. Seel, 34 C4th at 551 [Kennard, J., concurring]; see also Castillo v. U.S. (2000) 530 US 120 [147 LEd2d 94; 120 SCt 2090, 2092-96].)
[See Brief Bank # B-786 and # B-852 for additional briefing on Jones and Apprendi.]
F 8.67 n3 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 8.67 n4 Provocation May Negate Premeditation And Deliberation As To Attempted Murder.
(See FORECITE F 8.73d.)
F 8.67 n5 Attempted Murder: Whether Absence Of Intended Victim Is A Defense.
(See FORECITE F 8.66 n12.)
F 8.67 n6 Board Of Prison Terms Regulations Changed To Comply With People v. Bright.
In response to a Petition For Writ of Habeas Corpus filed by a prisoner (Thomas Sims) the Sacramento Superior Court ordered that the California Board of Prison Terms modify its regulations to comply with People v. Bright (96) 12 C4th 652 [49 CR2d 732] [PC 664 does not divide the crime of attempted murder into degrees but rather imposes a penalty enhancement for attempted murder which is willful, deliberate, and premeditated]. The Board’s written statement in response to the order is included in the Opinion Bank; see Opinion Bank # O-272.
F 8.67a
Attempted Murder: Premeditated Enhancement –
Aider And Abettor Need Not Personally Premeditate
(PC 664(a))
ALERT: See FORECITE F 8.67 n2 [Federal Constitution Requires Treatment Of Premeditated Attempted Murder As Separate Offense Rather Than Enhancement].
*Modify CJ 8.67 as follows [added language is capitalized; deleted language is between <<>>]:
*¶ 3:
If you find that the attempt to commit murder was preceded and accompanied by a clear, deliberate intent to kill PERSONALLY FORMED BY THE DEFENDANT, which was the result of deliberation and premeditation, so that it must have been formed BY THE DEFENDANT upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is AN attempt to commit willful, deliberate, and premeditated murder.
*¶ 6:
To constitute A willful, deliberate, and premeditated attempt to commit murder, the <<would-be slayer>> DEFENDANT must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide<<s>> to kill and make<<s>> a direct but ineffectual act to kill another human being.
*Add to end:
THE VICARIOUS LIABILITY PRINCIPLES OF AIDING AND ABETTING UPON WHICH YOU HAVE BEEN INSTRUCTED ARE NOT APPLICABLE TO YOUR DETERMINATION AS TO DELIBERATION AND PREMEDITATION. YOU MUST FIND THAT THE DEFENDANT PERSONALLY FORMED A WILLFUL, DELIBERATE AND PREMEDITATED INTENT TO KILL BEFORE FINDING DEFENDANT GUILTY OF WILLFUL, DELIBERATE AND PREMEDITATED MURDER.
Points and Authorities
When an aider and abetter is charged with attempted murder which is premeditated and deliberate under PC 664(a), the California Supreme Court has held that the premeditation allegation is essentially a sentence enhancing provision. (People v. Bright (96) 12 C4th 652, 669, but see FORECITE F 8.67 n2.) Accordingly, it must be determined from the statute whether liability for the sentencing enhancement may be imposed vicariously upon an aider and abetter. (See e.g., People v. Walker (76) 18 C3d 232, 240-43 [133 CR 520] [PC 12022.5 use enhancement requires personal use].)
The governing statute with respect to attempted murder is somewhat awkwardly worded in the context of this issue: “[I]f the crime attempted is willful, deliberate and premeditated murder, as defined in [PC] 189, the personguilty of that attempt shall be punishable ….” (PC 664(a) [emphasis added].) Under a literal construction of the emphasized phrases, if an attempted murder was premeditated by someone, then any defendant found guilty is subject to the increased term, with or without the requisite mens rea or any knowledge of it. However, such a result would create absurd and unjust results which should not be ascribed to the Legislature. (See In re Jason L. (90) 222 CA3d 1206, 1214 [272 CR 316].) “In this context the application of that rule of construction suggests that conduct that is more, not less, culpable is required for imposition of criminal penalties. [Citation.]” (People v. Simon (95) 9 C4th 493, 517 [37 CR2d 278].) If there is a reasonable alternative construction which is more favorable to the defendant, it generally must be adopted by the courts. (Ibid.) Such a construction exists. In PC 664(a) “the person guilty of that attempt” is a reference to the entire preceding clause: “if the crime attempted is willful, deliberate and premeditated murder ….” The two clauses read together suggest that only a defendant who in fact deliberated and premeditated is subject to the enhanced punishment.
Such a result is consistent with People v. Walker, supra, 18 C3d at 241-42, which held that: “if [an enhancing] statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act.” (Id. at 241-42.)
“Since Walker, the Legislature has been quite explicit when it intends an enhancement provision to apply to a defendant, even though he himself does not commit the proscribed act.” (People v. Piper (86) 42 C3d 471, 477 [229 CR 125].) Where no such express provision is made in the statute — or where its reach is ambiguous — personal liability must be established. (Ibid; see also, People v. Rener (94) 24 CA4th 258, 267 [29 CR2d 392].) Accordingly, since the Supreme Court has held that PC 664(a) is a penalty enhancement provision rather than a substantive offense (Bright, 12 C4th at 668), under Walker the statute requires the defendant to personally deliberate and premeditate for the enhancement to apply. (See also, People v. Ross (79) 92 CA3d 391, 402-03 [154 CR 783] [defendant could not be subjected to additional punishment for a torture special circumstance on a theory of derivative liability] but see People v. Laster (97) 52 CA4th 1450, 1472-73 [61 CR2d 680] [defendant may be convicted of premeditated attempted murder under PC 664(a) based on the premeditation and deliberation of the perpetrator rather than the defendant who was guilty as an aider and abettor].) [Additional briefing on this issue, including briefing challenging Laster, is available to FORECITE subscribers. Ask for Brief Bank # B-683.]
Accordingly, the jury should be instructed that it must determine whether the defendant personally deliberated and premeditated.
(See FORECITE F 8.66 n11.)
F 8.67b
Modification When Crime Involves Fetal Victim
*Modify CJ 8.67 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
