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F 8.81.5a
Special Circumstances — Murder of Peace Officer:
Required Specific Intent To Avoid Arrest Or To Escape
*Add to CJ 8.81.5:
[To find that the murder was committed for the purpose of avoiding or preventing a lawful arrest you must determine beyond a reasonable doubt that the killer had the specific intent to avoid or prevent a lawful arrest.]
[To find that the murder was committed to perfect, or attempt to perfect an escape from lawful custody you must determine beyond a reasonable doubt that the killer had the specific intent to escape from lawful custody.]
Points and authorities
The process of determining whether a crime entails general or specific intent should start with an examination of the statutory language. General intent crimes proscribe particular acts. For such crimes, reference is not made to any intent to accomplish some further act or achieve some further consequence. (See People v. Hood (69) 1 C3d 444, 456 [82 CR 618]; People v. Lopez (86) 188 CA3d 592, 598 [233 CR 207].) Where the definition includes the defendant’s intent to accomplish a further act or achieve an additional consequence, the crime is one of specific intent. (Hood, 1 C3d at 456-57.)
Hence, because PC 190.2(a)(5) requires that the killing be for the “purpose” of avoiding arrest or to escape, it follows that such specific intent is an element of the special circumstance.
The failure to define a technical term which is an element of the charge 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 FORECITE PG X(C)(8).)
Moreover, when the special circumstance is utilized as a death qualifier, it violates the 8th Amendment of the federal constitution for the special circumstance to be returned without a determination by the jury under correct instructions that all elements of the special circumstance have been proven. Furthermore, such an error also violates the 8th Amendment because it undermines the reliability of the special circumstance verdict and the resultant death sentence.
F 8.81.5b
Special Circumstances: Avoidance-Of-Arrest
*Modify CJ 8.81.5 to provide as follows when appropriate [added language is capitalized:]
<<[>>1. The murder was committed for the purpose of avoiding or preventing a lawful arrest, <<][.] [,>>or<<]>>
<<[>>1. The murder was committed to perfect, or attempt to perfect, an escape from lawful custody<<.]>>
2. THE ARREST WAS IMMINENT.
Points and Authorities
The murder to prevent arrest or perfect escape special circumstance (PC 190.2(a)(5)) predicates death or life without parole eligibility on murder which was committed for the purpose of avoiding or preventing a lawful arrest. (SeePeople v. Coleman (89) 48 C3d 112, 145-46 [255 CR 813].) Although it has been held that this special circumstance may not be upheld if the evidence did not show that the arrest was imminent (People v. Coleman, supra; People v. Bigelow(84) 37 C3d 731, 751 [209 CR 328]), imminence of the arrest is not an element of the special circumstance upon which the jury must be instructed in every case. (See People v. Cummings (93) 4 C4th 1233, 1300 [18 CR2d 796].) However, if there is an evidentiary question as to whether the arrest was imminent, supplemental instruction on this issue may be appropriate. (See Cummings, 4 C4th at 1301; see also People v. Vorise (99) 72 CA4th 312 [85 CR2d 12].)
