SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 721 Special Circumstances: Multiple Murder Convictions (Same Case), PC 190.2(a)(3)
TABLE OF CONTENTS
F 721.1 Titles And Identification Of Parties
F 721.1 Inst 1 Special Circumstances: Multiple Murder Convictions (Same Case )—Title
F 721.1 Inst 2 Identification Of Prosecution And Defendant
F 721.2 Instructions
F 721.2 Inst 1 Linking Special Circumstance To the Murder To Which It Relates
F 721 NOTES
F 721 Note 1 Special Circumstances: Multiple Murder Convictions (Same Case), PC 190.2(a)(3)—CALCRIM Cross-References And Research Notes
F 721 Note 2 Multiple Murder Special: Overbreadth Constitutional Challenge
F 721 Note 3 Multiple Murder Special: Overbreadth Constitutional Challenge When Multiple Murders Are Caused By A Single Act
F 721 Note 4 Multiple Murder Special: Defense Of Duress Should Apply (PC 190.2(a)(3))
F 721 Note 5 Multiple Murder Special Circumstance: No Double Counting
Return to Series 700 Table of Contents.
F 721.1 Titles And Identification Of Parties
F 721.1 Inst 1 Special Circumstances: Multiple Murder Convictions (Same Case)—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 721.1 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 721.2 Instructions
F 721.2 Inst 1 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 721 Notes
F 721 Note 1 Special Circumstances: Multiple Murder Convictions (Same Case), PC 190.2(a)(3)C 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, 1990C Other Than Felony Murder]
CALCRIM 703 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990C 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 721 Note 2 Multiple Murder Special: Overbreadth Constitutional Challenge
PC 190.2(a)(3) permits death eligibility based upon the defendant’s commission of more than one murder. However, because this special circumstance presents a broad class, composed of persons of many different levels of culpability, it is overly broad and in violation of the 8th Amendment of the federal constitution. This is so because the multiple murder special circumstance creates “the potential for impermissibly disparate and irrational sentencing because [it] encompass[es] a broad class of death eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them. [Fn omitted.]” (U.S. v. Cheely (9th Cir. 1994) 36 F3d 1439, 1444.)
In determining whether a special circumstance is sufficiently narrow, a two-prong test is required. First, the narrowing factor must focus upon the defendant’s mental state, not just the act which was committed because relative culpability should be determined by consideration of mens rea as well as actus reus. (See People v. Steger (1976) 16 C3d 539, 544-45.) If the narrowing factor only looks toward the act, the factor is not a rational means of distinguishing those cases in which the defendant is death eligible from those cases in which he or she is not. (See Cheely, supra, 36 F3d at 1445.) Second, the narrowing factor must not be overly broad so as to permit death eligibility under the same factor for defendants whose crimes are of disparate levels of culpability. If the death eligibility factor encompasses different levels of culpability, the narrowing is not rational. (See Cheely, supra, 36 F3d at 1445.)
When the above test is applied to the multiple murder special circumstance, authorized by PC 190.2(a)(3), the statute’s constitutional infirmities are exposed. (But see discussion of People v. Sapp (2003) 31 C4th 240 in FORECITE F 8.81.3 n3.)
First, the multiple murder special circumstance does not focus on the mental state of the perpetrator but only on the act committed. In other words, death eligibility is based entirely upon the fact that more than one murder has been committed without any consideration of whether the defendant’s mental state is more culpable than had only one murder been committed. In fact, the culpability of a multiple murder defendant could actually be less than that of a defendant who kills only one victim. As set forth below, in cases where the second murder is accidental or without express malice and the initial murder is based upon felony murder, the multiple murder defendant’s mental state is unquestionably less culpable than the mental state of a single victim defendant who kills in premeditated cold blood. Therefore, because culpability based upon mental state is not even considered in the multiple murder special circumstance narrowing determination, this special circumstance does not provide a rational basis for infliction of the ultimate penalty and is in violation of the 8th Amendment.
Second, the multiple murder special circumstance authorized by PC 190.2(a)(3) encompasses an overly broad class of defendants of disparate and varying culpability. The multiple-murder special circumstance elevates the defendant convicted of first degree murder to death eligibility upon the truthful finding of a commission of another murder in the first or second degree. Thus, a defendant can be death eligible for many combinations of murder. For example, each of the perpetrators in the following scenarios are eligible for the death penalty under PC 190.2(a)(3) even though their relative culpability is decidedly disparate:
Scenario 1: Defendant is a serial killer. Over a five week period, he kills five women by tying them up, blind-folding them and shooting then in the back of the head. After the killings, defendant chops the bodies into several pieces and buries them in his backyard.
Scenario 2: Defendant commits a first degree murder; however, the bullet he uses to shoot his victim mistakenly tumbles out of the victim’s body and kills a bystander of whom he was unaware.
Scenario 3: Defendant commits a first degree murder. Later that night, after drinking heavily to forget his crime, defendant drives and crashes into another car, killing its driver (implied malice murder.)
Scenario 4: Defendant commits a first degree murder of a woman who, unbeknownst to the defendant, was pregnant with a 9-week old fetus. Under the holding of People v. Davis (1994) 7 C4th 797, the defendant could be given the death penalty under PC 190.2(a)(3). Such a result aptly illustrates the overbreadth of the multiple-murder special circumstance since there is no rational basis upon which to distinguish between a defendant who kills a woman who is not pregnant and who is, therefore, not subject to the death penalty and the defendant who unknowingly kills a fetus being carried by the victim. (See also People v. Taylor (2004) 32 C4th 863 [defendant can be convicted of two murders for killing a pregnant woman even if the defendant did not know she was pregnant]; compare 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)]; FORECITE F 8.81.17 n12.)
CALJIC NOTE: See FORECITE F 8.81.3 n2.
F 721 Note 3 Multiple Murder Special: Overbreadth Constitutional Challenge When Multiple Murders Are Caused By A Single Act
People v. Sapp (2003) 31 C4th 240, 287, upheld the multiple murder special circumstance because it applies to “those who have killed and killed again … .”Thus, Sapp implied that the special circumstance could not be constitutionally applied in situations where a single act results in multiple murders. (See e.g., Scenarios 2 and 4 in FORECITE F 8.81.3 n2; see also F 8.65 n1 [Death Of Intended Victim Does Not Preclude Transferring Intent To Unintended Victim].)
CALJIC NOTE: See FORECITE F 8.81.3 n3.
F 721 Note 4 Multiple Murder Special: Defense Of Duress Should Apply (PC 190.2(a)(3))
PC 26 provides that the defense of duress is available in a non-capital murder prosecution. (See People v. Moran (1974) 39 CA3d 398, 417; see also 1 Witkin & Epstein, Calif. Crim. Law (2d ed. 1988) §231, p. 268; People v. Bacigalupo (1991) 1 C4th 103, 124.) However, when the crime is punishable with death, duress is not available as a defense. (Ibid.) The application of this rule in the multiple murder special circumstance situation produces absurd and arbitrary results in violation of the 8th Amendment as well as implicating substantive and procedural due process as provided by the 14th Amendment. The results are arbitrary because the availability of the duress defense depends entirely upon the accident of whether or not the multiple murders were all charged in the same proceeding. It is arbitrary and absurd to allow one defendant the availability of the defense of duress simply because the murder charges were joined while denying another defendant that same defense because the charges were not joined. As so construed, the multiple murder special circumstance violates the 8th/14th Amendment proscription against arbitrary imposition of the death penalty and 14th Amendment equal protection and substantive due process principles because the statute does not rationally further the legislative objective. (See Gray v. Whitmore (1971) 17 CA3d 1, 21; see also U.S. ex rel. Reed v. Lane (7th Cir. 1985) 759 F2d 618, 622-23 [availability of compulsion defense as to prior murder negates capital punishment eligibility for second murder under multiple murder special circumstance].)
Moreover, procedural due process and fair notice principles are also implicated. For example, if the defendant commits the first murder under duress, then at the time that murder was committed the defense of duress was available per PC 26. Hence, the defendant may have committed the first murder under the reasonable and correct assumption that it was not unlawful. To allow a second killing (which may also have been under duress) to retroactively change the character of the first killing from a lawful killing to unlawful murder, implicates fundamental notions of notice, due process and fairness.
CALJIC NOTE: See FORECITE F 8.81.3 n1.
F 721 Note 5 Multiple Murder Special Circumstance: No Double Counting
See FORECITE F 763.3 (Factor a) Inst 13.
