SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 722 Special Circumstances: By Means Of Destructive Device, PC 190.2(a)(4) & (6)
TABLE OF CONTENTS
F 722.1 Titles And Identification Of Parties
F 722.1 Inst 1 Special Circumstances: By Means Of Destructive Device—Title
F 722.1 Inst 2 Identification Of Prosecution And Defendant
F 722.2 Instructions
F 722.2 Inst 1 Linking Special Circumstance To the Murder To Which It Relates
F 722.2 Inst 2 Destructive Device: Reasonable Person Standard As Essential Part Of Element
F 722.2 Inst 3 Destructive Device Special Circumstance: Improper To Direct Verdict On Element
F 722 NOTES
F 722 Note 1 Special Circumstances: By Means Of Destructive Device—CALCRIM Cross References And Research Notes
F 722 Note 2 Murder By Destructive Device, Etc. (PC 190.2(a)(4) & PC 190.2(a)(6)): Components Must Be An Explosive
F 722 Note 3 Murder By Destructive Device, Etc. (PC 190.2(a)(4) & PC 190.2(a)(6)): What Is A Bomb Or Explosive Device?
F 722 Note 4 Availability Of Special Circumstances For Both Use Of A Bomb And Lying In Wait
Return to Series 700 Table of Contents.
F 722.1 Titles And Identification Of Parties
F 722.1 Inst 1 Special Circumstances: By Means Of Destructive Device—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 722.1 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 722.2 Instructions
F 722.2 Inst 1 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 722.2 Inst 2 Destructive Device: Reasonable Person Standard As Essential Part Of Element
*Modify CC 722, paragraph 2, Element 3
3. Either:
A. The defendant actually knew, or reasonably should have known, that (his/her) actions would create a great risk of death to one or more human beings.
B. A reasonable person in the defendant’s situation and in light of all the circumstances as they were known to and appeared to the defendant would have known that (his/her) actions would create a great risk of death to one or more human beings.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Reasonable Person Standard—To properly find constructive knowledge under the “reasonably should have known” standard the jurors must find that a reasonable person in the defendant’s situation and knowing what the defendant knew would have known the fact in question. (See CC 505, paragraph 3; FORECITE F 820.5 Inst 3.)
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.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 722.2 Inst 3 Destructive Device Special Circumstance: Improper To Direct Verdict On Element
*Modify CC 722 to DELETE the following:
[A destructive device is __________ <insert definition supported by evidence from Pen. Code, §12301>.]
. . .
[A __________ <insert type of destructive device from Pen. Code, §12301> is a destructive device.]
Points and Authorities
[See FORECITE F 8.81.19a.]
CALJIC NOTE: See FORECITE F 8.81.4e.
F 722 Notes
F 722 Note 1 Special Circumstances: By Means Of Destructive Device—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 722 Note 2 Murder By Destructive Device, Etc. (PC 190.2(a)(4) & PC 190.2(a)(6)): Components Must Be An Explosive
When none of the components of the device nor any combination thereof rises to the level of an explosive, then it is not a destructive device. (People v. Westoby 63 CA3d at 795; see also In re Brian K. UNPUBLISHED (G010547).)
CALJIC NOTE: See FORECITE F 8.81.4 n2.
F 722 Note 3 Murder By Destructive Device, Etc. (PC 190.2(a)(4) & PC 190.2(a)(6)): What Is A Bomb Or Explosive Device?
Based on People v. Quinn (1976) 57 CA3d 251, 258 the Bench Notes for CC 722 state that the term “bomb” is not vague and will be understood in it’s “common, accepted, and popular sense” by the jurors without an instructional definition. However, in light of the fact that the California Supreme Court has not spoken on this issue, counsel may wish to consider whether to request the following definition taken from People v. Morse (1992) 2 CA4th 620, 647 fn. 8 and included in the BENCH NOTES:
“A bomb is a device carrying an explosive charge fused to blow up or detonate under certain conditions.”
CALJIC NOTE: See FORECITE F 8.81.4 n1.
F 722 Note 4 Availability Of Special Circumstances For Both Use Of A Bomb And Lying In Wait
See People v. Edwards (1991) 54 C3d 787, 823-24 [two special circumstances permissible where use of bomb was contemporaneous with or directly after the act of lying in wait].
