Return to CALJIC Part 9-12 – Contents
F 9.90 n1 Torture: Battery And Mayhem Lesser Included Offenses (PC 206).
Assaultive Crimes (PC 245, PC 273a, PC 273d, PC 273.5) and battery (PC 242, PC 243 et seq.) should be lesser included offenses of torture (PC 206). The infliction of pain required for torture necessarily includes the commission of an act resulting in an unlawful touching of the victim.
F 9.90 n2 Second Degree Torture Murder Per PC 206 Included In Torture Murder (PC 206).
See FORECITE F 8.24 n4.
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
F 9.90 n3 Torture: Nature Of Required Intent (PC 206).
ALERT: People v. Aguilar (97) 58 CA4th 1196 [68 CR2d 619] [PC 206 does not require an intent to inflict prolonged pain and does not require a willful, deliberate and premeditated intent to inflict pain]. See also generally People v. Baker (2002) 98 CA4th 1217 [120 CR2d 313].
Based on the language of PC 206 (adopted as part of Proposition 115) the July 1991 CALJIC pocket part proposes an instruction on torture which includes the “specific intent to cause cruel or extreme pain and suffering.” CALJIC opines that by not specifically requiring the mens rea which has been attributed to first degree torture murder per PC 189 — i.e., deliberate and premeditated intent to inflict extreme and prolonged pain — PC 206 torture requires a lesser showing than PC 189 torture murder. This analysis is spelled out in the comment to CJ 8.24.
However, there remains an argument that premeditated and deliberated intent to inflict pain is an element of PC 206 torture. (But see People v. Baker (2002) 98 CA4th 1217 [120 CR2d 313].) First, the mens rea for PC 189 torture murder is the product of the judiciary’s interpretation of the meaning of torture rather than the express statutory language of PC 189. Second, for purposes of special circumstance torture murder, it has been held that the electorate intended to incorporate as much of the judicial meaning of torture as is not inconsistent with its specific language. (People v. Leach (85) 41 C3d 92, 110 [221 CR 826].) There is no reason to impute any different intent to the electorate in adopting Proposition 115. Third, “[w]here the same term or phrase is used in a similar manner in two related statutes concerning the same subject, the same meaning should be attributed to the term in both statutes unless countervailing indications require otherwise. [Citation].” (Dieckmann v. Superior Ct. (85) 175 CA3d 345, 356 [220 CR 602].) Fourth, a statute must be interpreted in light of existing judicial construction unless its language “clearly and unequivocally” discloses an intent to depart from such judicial precedent. (Theodor v. Superior Court (72) 8 C3d 77, 92 [104 CR 226]; People v. Zikorus (83) 150 CA3d 324, 330 [197 CR 509].)
Additionally, without requiring an intent to inflict prolonged pain, torture could be found in any case where extreme pain was inflicted even though the pain was only momentary or fleeting. (E.g., a severe blow or bullet to the head.) Even if one who inflicts such an injury intended the victim to suffer extreme but momentary pain, such an intent is clearly at odds with any reasonable notion of torturous intent. Hence, the statute should be interpreted to require an intent to inflict prolonged pain in order to avoid absurd consequences not intended by the drafters. (See People v. Pieters (91) 52 C3d 894, 898 [276 CR 918].)
People v. Healy (93) 14 CA4th 1137, 1140-42 [18 CR2d 274], provides additional support for FORECITE’s analysis. Although Healy did not directly address the issue, it considered the sufficiency of evidence to support a PC 206 torture conviction utilizing the test enunciated in People v. Steger (76) 16 C3d 539, 548 [128 CR 161] and, based upon Steger, concluded that “the infliction of pain must be willful, deliberate and premeditated.” (Healy 14 CA4th at 1141.)
People v. Barrera (93) 14 CA4th 1555, 1571-72 [18 CR2d 395], which states that CJ 9.90 “properly sets forth the elements of torture,” did not address the question of whether the jury must be instructed upon the Steger definition of torture. Hence, it is not authority as to this issue. (People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390].) Moreover, Barrera, as did Healy, assumed that PC 206 torture is equivalent to PC 189 torture murder. In fact, Barrera relied upon the past approval of CJ 8.24, which does include the Steger definition.
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
F 9.90 n4 Torture: Requirement Of Prolonged Pain (PC 206).
In its Jan. 1994 pocket part, CALJIC states that CJ 9.90 was approved in People v. Barrera (93) 14 CA4th 1555, 1571-72 [18 CR2d 395]. However, Barrera did not generally approve CJ 9.90. It merely rejected the argument that the intent and great bodily injury elements should be broken down into three separate elements as opposed to the two elements included in CJ 9.90. Hence, Barrera does not resolve the issue of whether CJ 9.90 is deficient for failure to include an intent to inflict “prolonged” pain. Without such a requirement, torture may be found in any case where extreme pain was inflicted, even though the pain was only momentary or fleeting. (E.g., a severe blow or bullet to the head.) To allow a finding of torture in such a case would be inconsistent with the intent of the statute and would produce irrational results in violation of substantive due process. (See generally, Gray v. Whitmore (71) 17 CA3d 1, 21 [94 CR 904]; Blaylock v. Schwinden (9th Cir. 1988) 862 F2d 1352, 1354.) Hence, CJ 9.90 should be modified to require an intent to inflict “extreme and prolonged” pain. (See People v. Steger (76) 16 C3d 539, 548 [128 CR 161]; see also People v. Healy (93) 14 CA4th 1137, 1140-42 [18 CR2d 274] [Steger definition of torture utilized for purposes of evaluating the sufficiency of evidence to support a PC 206 torture conviction]; but see, People v. Vital (96) 45 CA4th 441 [52 CR2d 676] [holding that PC 206 does not require intent to inflict extreme and prolonged pain].)
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
F 9.90 n5 Unconstitutional Vagueness Of The Terms “Cruel,” “Sadistic Purpose,” “Torture” And “Extortion” (PC 206).
As used in PC 206, the above terms may be unconstitutionally vague. Although the California Courts of Appeal have upheld the constitutionality of the statute. (See People v. Barrera (93) 14 CA4th 1555, 1564-70 [18 CR2d 395]; People v. Healy (93) 14 CA4th 1137 [18 CR 274]; see also People v. Aguilar (97) 58 CA4th 1196 [68 CR2d 619] [PC 206 is not unconstitutionally vague or overbroad]), the constitutionality of the statute has not been resolved by the California Supreme Court or by the federal courts. (But see, People v. Raley (92) 2 C4th 870, 897-902 [8 CR2d 678] as to “sadistic purpose.”) [Briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank # B-572.]
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
F 9.90 n6 Torture: Evidence Required.
[Briefing discussing the legislative history of PC 206 and the nature of the evidence required to support the crime of torture is available to FORECITE subscribers; ask for Brief Bank # B-725.]
F 9.90 n7 Torture: PC 206 Not Vague Or Overbroad.
In People v. Aguilar (97) 58 CA4th 1196 [68 CR2d 619] the court held that PC 206 is not unconstitutionally vague or overbroad and made a number of rulings regarding the law of torture under PC 206.
F 9.90 n8 Torture: Personal Infliction Of GBI Not Required (PC 206 / PC 12022.7).
(See People v. Lewis (2004) 120 CA4th 882, 889 [unlike PC 12022.7, PC 206 does not require personal infliction of torture].)
F 9.90a
Torture: Cautionary Instruction Regarding Severity Of Wounds
*Add to CJ 9.90:
An intent to inflict extreme pain may be inferred from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body. But you are cautioned against giving undue weight to the severity of the victim’s wounds, because horrible wounds may be as consistent with a killing in the heat of passion, and/or in an explosion of violence, as with the intent to inflict cruel suffering.
Points and Authorities
(See People v. Cole (2004) 33 C4th 1158, 1213-14; see also People v. Morales (89) 48 C3d 527, 559; People v. Pensinger (91) 52 C3d 1210, 1239.)