SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 724 Special Circumstances: Murder Of Peace Officer, Federal Officer, Or Firefighter, PC 190.2(a)(7), (8) & (9)
TABLE OF CONTENTS
F 724.1 Titles And Identification Of Parties
F 724.1 Inst 1 Special Circumstances: Murder Of Peace Officer, Federal Officer, Or Firefighter—Title
F 724.1 Inst 2 Identification Of Prosecution And Defendant
F 724.2 Instructions
F 724.2 Inst 1 Murder of Peace Officer, Etc.: Reasonable Person Standard As Essential Part Of Element
F 724.2 Inst 2 Murder of Peace Officer, Etc.: Concurrence Of The Murder And Intent To Kill
F 724.2 Inst 3 Murder of Peace Officer, Etc.: Separate Enumeration Of Discrete Elements
F 724.2 Inst 4 Murder of Peace Officer, Etc.: Intent Requirement
F 724.2 Inst 5 Murder of Peace Officer, Etc.: Lawful Performance Of Duties—Modification Of Burden Shifting Language
F 724.2 Inst 6 Linking Special Circumstance To the Murder To Which It Relates
F 724.2 Inst 7 Killing Peace Officer In Retaliation For Performance Of Duties: Subjective Standard (PC 190.2(a)(7); PC 190.2(a)(8))
F 724.2 Inst 8 Peace Officer Special Circumstance: Proper Warrant Service As Factual Issue (PC 190.2(a)(7))
F 724 NOTES
F 724 Note 1 Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter—CALCRIM Cross References And Research Notes
F 724 Note 2 Peace Officer Special Requires Actual Knowledge
F 724 Note 3 Peace Officer Victim: “Performance Of Duties Defined” (PC 190.2(a)(7)/PC 190.2(a)(8)/PC 190.1(a)(9))C Lawful Detention Defined
F 724 Note 4 Federal Officer Special Requires Actual Knowledge
F 724 Note 5 Killing A Peace Officer: (PC 190.2 (a)(7) Is Included In Killing To Avoid Arrest (PC 190.2 (a)(5))
Return to Series 700 Table of Contents.
F 724.1 Titles And Identification Of Parties
F 724.1 Inst 1 Special Circumstances: Murder Of Peace Officer, Federal Officer, Or Firefighter—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 724.1 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 724.2 Instructions
F 724.2 Inst 1 Murder Of Peace Officer, Etc.: Reasonable Person Standard As Essential Part Of Element
*Modify CC 724, paragraph 2, Element 3
3. Either:
A. When __________ <insert officer’s name, excluding title> was killed, the defendant actually knew, or reasonably should have known, that __________ <insert officer’s name, excluding title> was a (peace officer/federal law enforcement officer/ firefighter) who was performing (his/her) duties.
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 __________ <insert officer’s name, excluding title> was a (peace officer/federal law enforcement officer/ firefighter) who was performing (his/her) duties.
Points and Authorities
See FORECITE F 722.2 Inst 2.
F 724.2 Inst 2 Murder Of Peace Officer, Etc.: Concurrence Of The Murder And Intent To Kill
*Modify CC 724, Element 2 as follows [added language is underlined; deleted language is stricken]:
2. When ______________ <insert officer’s name, excluding title> was killed the defendant intended to kill (him/her) ______________ <insert officer’s name, excluding title>;
Points and Authorities
See FORECITE F 251 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 724.2 Inst 3 Murder Of Peace Officer, Etc.: Separate Enumeration Of Discrete Elements
*Replace CC 724 Elements with the following:
1. __________________ <insert officer’s name, excluding title> was a (peace officer/federal law enforcement officer/firefighter);
2. __________________ <officer’s name> was killed when he was lawfully performing (his/her) duties as a (peace officer/federal law enforcement officer/firefighter);
3. When __________________ <officer’s name> was killed the defendant intended to kill (him/her);
AND
<Alternative 4AC killing during performance of duties>
4. When __________________ <officer’s name> was killed either:
A. The defendant knew he was a (peace officer/federal law enforcement officer/firefighter) and knew he was lawfully performing (his/her) duties;
OR
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 __________ <insert officer’s name, excluding title> was a (peace officer/federal law enforcement officer/ firefighter) who was lawfully performing (his/her) duties.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Enumeration Of Elements—See FORECITE F 3500.2 Inst 1; see also People v. Brown (1988) 46 C3d 432, 444-5 [jury must determine if victim is a peace officer].
Reasonable Person Standard Re: Whether Defendant Would Have Known—See FORECITE F 722.2 Inst 2.
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 724.2 Inst 4 Murder of Peace Officer, Etc.: Intent Requirement
*Replace CC 724, Element 3B [Defendant Must _______] with the following:
<Alternative 3B—killing in retaliation>
[3. The defendant [committed] [conspired to commit] the murder of ___________ <insert officer’s name, excluding title> with the intent to retaliate for the performance of (his/her) official duties.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Intent Requirement For Death Eligibility—The statute would violate the 8th Amendment and other federal constitutional principles if it allowed a special circumstance to be based on a retaliatory purpose which the defendant did not intend. (See CG 13.1.)
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 724.2 Inst 5 Murder of Peace Officer, Etc.: Lawful Performance Of Duties—Modification Of Burden Shifting Language
*Replace CC 724, paragraph 7 with the following:
To be lawfully performing his or her duties a peace officer must be acting lawfully. The defendant contends that ___________ <insert officer’s name, excluding title> was acting unlawfully because (he/she) ________________ <e.g., unlawfully attempted to arrest the defendant, used unreasonable or excessive force, etc.>. However, the defendant does not need to prove that ___________ <officer’s name> acted unlawfully. The prosecution must prove beyond a reasonable doubt that (he/she) [lawfully arrested defendant] [used reasonable force] and in all other respects performed (his/her) duties lawfully. If you have a reasonable doubt whether the prosecution has met this burden, you must find the special circumstance allegation to be untrue.
Points and Authorities
See generally FORECITE F 404.2 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.
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 724.2 Inst 6 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 724.2 Inst 7 Killing Peace Officer In Retaliation For Performance Of Duties: Subjective Standard (PC 190.2(a)(7); PC 190.2(a)(8))
*Add to CC 724:
In determining whether the victim was intentionally killed in retaliation for the performance of [his] [her] duties, you must consider only the subjective intent of the defendant. Thus, it is not sufficient to simply find that a reasonable person in the defendant’s position should have known that the person killed was a law enforcement officer engaged in the performance of [his] [her] duties. You must find that the defendant actually knew that the victim was a law enforcement officer engaged in the performance of [his] [her] duties and that the officer was intentionally killed in retaliation for the performance of those duties.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Actual Subjective Knowledge Required—The “in retaliation for” section of PC 190.2(a)(7) and PC 190.2(a)(8) establishes a purely subjective standard, without any “reasonable belief” qualifier as follows: “The victim was a police officer … who, while engaged in the performance of his or her duties was intentionally killed, and the defendant knew or reasonably should have known that the victim was a police officer engaged in the performance of his or her duties; or the victim was a police officer … and was intentionally killed in retaliation for the performance of his or her official duties.“
The “reasonably should have known” language appears only in the killed “while engaged in performance of duties” part of PC 190.2(a)(7) and PC 190.2(a)(8), which provide capital sanction protection for any officer while engaged in conduct which a reasonable person would understand to be part of the officer’s official duties. That portion of the statute does not ask anything about the motivation of the killer; its focus is on what the officer is doing when killed. The “in retaliation for” prong of PC 190.2(a)(7) and PC 190.2(a)(8) is quite different. Its focus is on what motivated the killer. Why did he kill? It must be “in retaliation for the officer’s performance of official duties.” The question is purely subjective. If the killer acted because he thought the officer had made a pass at the killer’s girlfriend, cheated the killer at cards, or manipulated witnesses to manufacture evidence against him, then the killer may have been motivated by a desire for retaliation, but it was not retaliation for the officer’s performance of his/her official duties—and the reasonableness or unreasonableness of the killer’s belief that the officer had done whatever the killer was angry about is irrelevant.
Hence, it is the officer’s conduct, as understood by the killer, that is determinative. (See e.g., People v. Weidert (1985) 39 C3d 836, 853-54 [for witness killing special (PC 190.2(a)(10)) it is the defendant’s “subjective interest that is relevant” ].) For example, if the killer believed the officer was acting unlawfully (e.g., manufacturing evidence), and killed him for that reason, he was seeking to retaliate for conduct which clearly was not within the scope of the victim’s official duties.
Moreover, to the extent the statutory language is ambiguous, it should be resolved in favor of the defendant. (Weidert, 39 C3d at 848.) Ambiguous statutory elements implicate federal constitutional principles of due process and fair notice (5th and 14th Amendments). (See Dunn v. U.S. (1979) 442 US 100, 112-13 [60 LEd2d 743; 99 SCt 2190].)
Accordingly, the jury should be instructed as set forth above to assure that it fully understands the subjective element of the special circumstance.
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. Such an error also violates the 8th Amendment because it undermines the reliability of the special circumstance verdict and the resultant death sentence.
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.
CALJIC NOTE: See FORECITE F 8.81.7b.
F 724.2 Inst 8 Peace Officer Special Circumstance: Proper Warrant Service As Factual Issue (PC 190.2(a)(7))
*Add to CC 724 after Section B [Unlawful Arrest]:
“1. [Acting under a warrant of arrest which was valid on its face and properly served. An arrest is not lawful unless the officer acted only as the warrant expressly authorized and commanded.]”
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Proper Service Of Warrant As Jury Issue—The proper service of a warrant is a jury issue under the “engaged-in-duty” requirement of the peace-officer special circumstance. (PC 190.2(a)(7); People v. Gonzalez (1990) 51 C3d 1179, 1222-23.) Moreover, although the jury does not decide whether the facts disclosed to the magistrate were legally sufficient to establish probable cause, the question of whether the victim was engaged in official “duties” includes determining whether he or she obtained a warrant which was regular on its face and acted only as the warrant expressly authorized and commanded. (See People v. Mayfield (1997) 14 C4th 668 [the phrase “engaged in performance of his or her duties” means the officer must have been acting lawfully at the time].)
The July 1991 CALJIC pocket part opines that the facial validity of the warrant is a legal issue for the court to resolve. However, unless the warrant is facially valid the officer is not “engaged in the performance of his duties.” (Gonzales at 1220-21.) And, because the latter issue is a factual one (People v. Henderson (1976) 58 CA3d 349, 358-59), the jury must determine the facial validity of the warrant. (People v. Figueroa (1986) 41 C3d 714, 724, 733 [state and federal (14th Amendment) due process require jury to find all elements of the charge]; see also People v. Hedgecock (1990) 51 C3d 395, 407 [the distinction between question of law/question of fact “plays a relatively limited role in view of the defendant’s constitutional right to have a jury determine the existence of all elements of the offense charged.” Citing Figueroa].)
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.
CALJIC NOTE: See FORECITE F 8.81.8a.
F 724 Notes
F 724 Note 1 Special Circumstances: Murder Of Peace Officer, Federal Officer, Or Firefighter—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 724 Note 2 Peace Officer Special Requires Actual Knowledge
PC 190.2(a)(7) and PC 190.2(a)(8) allows the special to be found if the defendant “knew, or reasonably should have known, that the victim was a peace officer … .” This allows a death sentence to be based upon the equivalent of criminal negligence. (See Williams v. Garcetti (1993) 5 C4th 561, 574; see also People v. Simon (1995) 9 C4th 493, 507-23.) Yet the California Supreme Court has held that criminal negligence is not even sufficient to support implied malice for second degree murder. (People v. Watson (1981) 30 C3d 290, 296-7.)
Therefore, allowing a special circumstance to be predicated on criminal negligence violates the 8th Amendment of the federal constitution which requires that the death eligibility determination (i.e., the special circumstance determination in California) must rationally narrow the class of individuals who are death eligible for valid penological reason(s). (Spaziano v. Florida (1984) 468 US 447, 460, n 7 [82 LEd2d 340; 104 SCt 3154]; see also Tison v. Arizona (1987) 481 US 137, 149 [95 LEd2d 127; 107 SCt 1676].) This principle requires a State to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (1990) 497 US 764 [111 LEd2d 606, 619; 110 SCt 3092] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [64 LEd2d 398; 100 SCt 1759]; 8th & 14th Amendments.) Death eligibility which is predicated upon nothing more than criminal negligence does not satisfy these 8th Amendment principles.
CALJIC NOTE: See FORECITE F 8.81.7 n2.
F 724 Note 3 Peace Officer Victim: “Performance Of Duties Defined” (PC 190.2(a)(7)/PC 190.2(a)(8)/PC 190.1(a)(9))—Lawful Detention Defined
See FORECITE F 9.27a; see also People v. Mayfield (1997) 14 C4th 668 [officer is engaged in performance of duties if making a lawful detention].
People v. Jenkins (2000) 22 C4th 900, 1019-20 held that although PC 190.2(a)(7) requires a subjective purpose to retaliate for performance of official duties (performance of which must in fact have been lawful), the special circumstance does not require a subjective awareness on the part of the defendant that the officer had acted lawfully in performing those official duties.
CALJIC NOTE: See FORECITE F 8.81.8 n1.
F 724 Note 4 Federal Officer Special Requires Actual Knowledge
(See FORECITE F 724 n2.)
F 724 Note 5 Killing A Peace Officer: (PC 190.2 (a)(7) Is Included In Killing To Avoid Arrest (PC 190.2 (a)(5))
It is well established that a crime is a lesser included offense of another if “the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” (People v. Geiger (1984) 35 C3d 510, 517, fn 4.) Under this principle, the killing of a peace officer special (PC 190.2 (a)(7)) is included in the avoiding arrest special (PC 190.2 (a)(5)). The avoiding arrest special is predicated upon the killing of an officer and therefore the killing of a peace officer is necessarily included therein. This is so even though these are special enhancements rather than substantive offenses. Lesser-included offense principles have been held applicable to enhancements. Most notably, “arming” (PC 12022(a)) is a lesser-included charge of gun use under PC 12022.5. (See e.g., People v. Wandick (1991) 227 CA3d 918, 925-27; People v. Allen (1985) 165 CA3d 616, 626-27; People v. Hays (1983) 147 CA3d 534, 543-51.) Similarly, in sex offense cases, “arming” under PC 12022.3(b) is necessarily included within “use” under PC 12022.3(a). (People v. Turner (1983) 145 CA3d 658, 683-84; cf. People v. Manning (1992) 5 CA4th 88, 90-91 [questioning Turner but not specifically disagreeing with its holding on jury instructions].) Accordingly, the jury should be instructed that these two specials are charged in the alternative and only one of the two may be found to be true.
CALJIC NOTE: See FORECITE F 8.81.7 n1.
