SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 720 Special Circumstances: Financial Gain, PC 190.2(a)(1)
TABLE OF CONTENTS
F 720.1 Titles And Identification Of Parties
F 720.1 Inst 1 Special Circumstances: Financial Gain—Title
F 720.1 Inst 2 Identification Of Prosecution And Defendant
F 720.2 Instructions
F 720.2 Inst 1 Linking Special Circumstance To the Murder To Which It Relates
F 720.2 Inst 2 Concurrence Of Act And Intent
F 720 NOTES
F 720 Note 1 Special Circumstances: Financial Gain, PC 190.2(a)(1)—CALCRIM Cross-References And Research Notes
F 720 Note 2 Financial Gain Special: No Sua Sponte Duty To Instruct As To Concurrence Of Intent (PC 190.2(a)(1))
F 720 Note 3 Financial Gain Special: Role Of Motive Instruction (CJ 2.51) (PC 190.2(a)(1))
F 720 Note 4 Victim’s Death Must Be Essential Prerequisite Of The Financial Gain (PC 190.2(a)(1))
F 720 Note 5 Financial Gain Special: Imputation Of Motive To Aider And Abettor
F 720 Note 6 Financial Gain Need Not Be The Dominant Motive But Green Rule May Apply (PC 190.2(a)(1))
Return to Series 700 Table of Contents.
F 720.1 Titles And Identification Of Parties
F 720.1 Inst 1 Special Circumstances: Financial Gain—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 720.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 720.2 Instructions
F 720.2 Inst 1 Linking Special Circumstance To The Murder To Which It Relates
*Modify CC 720, paragraph 2 as follows [added language is underlined; deleted language is stricken]:
To prove that this special circumstance is true, the People prosecution must prove beyond a reasonable doubt that the defendant is guilty of first degree murder as charged in Count ___ and that as to such murder:
[Insert elements of special circumstances]
Points and Authorities
Requirement That Special Circumstance Related To Charged Murder—See generally PC 20; FORECITE F 251 Inst 3.
“Prove Beyond A Reasonable Doubt”—See CALCRIM Motion Bank FORECITE 415.8 Inst 1.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 720.2 Inst 2 Concurrence Of Act And Intent
*Modify CC 720, paragraph 2, Element 1 as follows [added language is underlined]:
1. The defendant intended to kill when (he/she) [is alleged to have killed ______________ <name of alleged victim> [did the alleged acts upon which the murder charge is based];
…
Points and Authorities
The intent to kill requirement in CALCRIM 720 is not limited to the actus reus of the charge. Such linkage or concurrence of act and intent is an essential element of the charge. (See PC 20; FORECITE F 251 Inst 3.) Hence, the judge should have a sua sponte obligation to instruct on this element. (See generally People v. Williams (1997) 16 C4th 635, 689 [duty to instruct on elements of special circumstances]; but see People v. Noguera (1982) 4 C4th 599, 635 [no sua sponte duty].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 720 Notes
F 720 Note 1 Special Circumstances: Financial Gain, PC 190.2(a)(1)—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 701 [Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990]
CALCRIM 702 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder]
CALCRIM 703 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder]
CALCRIM 704 [Special Circumstances: Circumstantial Evidence—Sufficiency]
CALCRIM 705 [Special Circumstances: Circumstantial Evidence—Intent or Mental State]
CALCRIM 706 [Special Circumstances: Jury May Not Consider Punishment]
CALCRIM 707 [Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute Whether Witness Is Accomplice]
CALCRIM 708 [Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute Whether Witness Is Accomplice]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 720 Note 2 Financial Gain Special: No Sua Sponte Duty To Instruct As To Concurrence Of Intent (PC 190.2(a)(1))
There is no sua sponte obligation of the trial judge to instruct that the defendant must possess the required intent at the time of the killing. (Noguera 4 C4th at 635.) However, because such concurrence of the killing and intent is a required element of the financial gain circumstance, the failure to instruct upon this element may implicate federal due process. (See FORECITE F 3.31.5; FORECITE PG VII.) Moreover, if a theory of the defense focused upon the concurrence of act and intent element then, at a minimum, the defense should have a right to a pinpoint instruction upon this issue. (See generally FORECITE PG III(A).)
CALJIC NOTE: See FORECITE F 8.81.1 n2.
F 720 Note 3 Financial Gain Special: Role Of Motive Instruction (CJ 2.51) (PC 190.2(a)(1))
CJ 2.51 (now CC 370) (motive is not an element of the crime charged and need not be proven) does not erroneously permit the jury to dispense of proof of the financial gain special circumstance. (Noguera 4 C4th at 637.) However, there certainly is no reason why CC 370 should not be modified to clarify this point upon request.
CALJIC NOTE: See FORECITE F 8.81.1 n3.
F 720 Note 4 Victim‘s Death Must Be Essential Prerequisite Of The Financial Gain (PC 190.2(a)(1))
The California Supreme Court has consistently held that a financial gain allegation may not be submitted to the jury unless there is evidence to the effect that “the victim‘s death [was] the consideration for, or an essential prerequisite to, the financial gains sought by the defendant.” (People v. Howard (1992) 1 C4th 1132, 1180-81; see also People v. Mickey (1991) 54 C3d 612, 678.) Hence, when appropriate the jury should be so instructed.
CALJIC NOTE: See FORECITE F 8.81.1 n4.
F 720 Note 5 Financial Gain Special: Imputation Of Motive To Aider And Abettor
People v. Padilla (1995) 11 C4th 891 held that the jury instruction on the financial gain special circumstance (PC 190.2(a)(1)) was proper in permitting the motive of the actual killer to be imputed to the defendant, an aider and abettor. The court held that in an aiding and abetting case, there is no requirement that the jury make an individual determination that the defendant‘s individual motive be to provide financial gain to induce the murder.
However, the court did not address the argument that because the special circumstance is a sentencing enhancement provision, derivative liability is only permissible when the statute expressly provides for it. (See FORECITE F 8.67a.)
CALJIC NOTE: See FORECITE F 8.81.1 n5.
F 720 Note 6 Financial Gain Need Not Be The Dominant Motive But Green Rule May Apply (PC 190.2(a)(1))
There is no obligation to instruct the jury that the financial gain motive was a dominant, substantial, or significant motive for the murder. Nor is there any obligation to instruct that financial gain was the “primary goal” of the killing. (People v. Michaels (2002) 28 C4th 486, 519; see also People v. Noguera (1992) 4 C4th 599, 634-36; People v. Jackson (1996) 13 C4th 1164, 1229 [CJ 8.81.1 accurately reflects requirement that defendant intentionally commit the murder for financial gain].) However, the Noguera court did implicitly recognize that if the evidence supported a claim that the requisite intent to the special circumstance finding was somehow “ancillary” to the commission of the murder, such an instruction might be required under the authority of People v. Green (1980) 27 C3d 1, 61. (Noguera 4 C4th at 636.)
CALJIC NOTE: See FORECITE F 8.81.1 n1.
