SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 725 Special Circumstances: Murder Of Witness, PC 190.2(a)(10)
TABLE OF CONTENTS
F 725.1 Titles And Identification Of Parties
F 725.1 Inst 1 Special Circumstances: Murder of Witness—Title
F 725.1 Inst 2 Identification Of Prosecution And Defendant
F 725.2 Instructions
F 725.2 Inst 1 Murder of Witness: Concurrence Of Killing And Intent To Kill
F 725.2 Inst 2 Murder of Witness: Defendant Must Believe Victim Was A Witness
F 725.2 Inst 3 Linking Special Circumstance To the Murder To Which It Relates
F 725 NOTES
F 725 Note 1 Special Circumstances: Murder of Witness—CALCRIM Cross References And Research Notes
F 725 Note 2 Witness Murder Special: Definition Of “Juvenile Proceeding” (PC 190.2(a)(10))
F 725 Note 3 Witness Murder Special: Prevention of Testimony Need Not Be Predominant Purpose Of The Murder
F 725 Note 4 Witness Murder Special: No Requirement That Victim Be An Eyewitness To A Prior Crime
F 725 Note 5 Witness Murder Special: Content Of Testimony Irrelevant
F 725 Note 6 2004 Enlargement Of Witness-Murder Statute Should Not Apply To Pre-Enlargement Cases
F 725 Note 7 Witness Murder Special: (“Yoshiato Window” (Prop 115)) (PC 190.2(a)(10))
Return to Series 700 Table of Contents.
F 725.1 Titles And Identification Of Parties
F 725.1 Inst 1 Special Circumstances: Murder Of Witness—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 725.1 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 725.2 Instructions
F 725.2 Inst 1 Murder Of Witness: Concurrence Of Killing And Intent To Kill
*Modify CC 725 Element 1 as follows [added language is underlined]:
1. At the time ______________ <insert name of decedent> was killed the defendant intended to kill (him/her) ___________ <insert name of decedent>;
Points and Authorities
See FORECITE F 251 Inst 3.
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 725.2 Inst 2 Murder of Witness: Defendant Must Believe Victim Was A Witness
*Modify CC 725, Element 4 as follows [added language is underlined; deleted language is stricken]:
4. The defendant intended believed that __________ <insert name of decedent> was a witness in a criminal prosecution and intended that (he/she) be killed (to prevent (him/her) from testifying in a (criminal/ [or] juvenile) proceeding/ [or] in retaliation for (his/her) testimony in a (criminal/ [or] juvenile) proceeding).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Belief Required—See People v. Jenkins (2000) 22 C4th 900.
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 725.2 Inst 3 Linking Special Circumstance To The Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 725 Notes
F 725 Note 1 Special Circumstances: Murder Of Witness—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 725 Note 2 Witness Murder Special: Definition Of “Juvenile Proceeding“ (PC 190.2(a)(10))
A capital defendant is entitled to a jury finding on every element of a special circumstance. (People v. Odle (1988) 45 C3d 386, 410-12.) Therefore, the court should instruct the jury on the definition of a juvenile proceeding as set forth in WI 602 and WI 707.
CALJIC NOTE: See FORECITE F 8.81.10 n2.
F 725 Note 3 Witness Murder Special: Prevention Of Testimony Need Not Be Predominant Purpose Of The Murder
People v. Stanley (1995) 10 C4th 764, 800 held that there is no sua sponte duty to instruct the jury that in order to find the special circumstance true, the jury must find the predominant purpose of the murder was to prevent the testimony.
CALJIC NOTE: See FORECITE F 8.81.10 n4.
F 725 Note 4 Witness Murder Special: No Requirement That Victim Be An Eyewitness To A Prior Crime
People v. Jones (1996) 13 C4th 535, 549-51 held that the witness murder special circumstance for PC 190.2(a)(10) does not require that the victim be an eyewitness to a prior crime as opposed to any other witness who might testify in a criminal proceeding.
CALJIC NOTE: See FORECITE F 8.81.10 n6.
F 725 Note 5 Witness Murder Special: Content Of Testimony Irrelevant
(See People v. Bolter (2001) 90 CA4th 240 [for witness-killing special circumstance (PC 190.2(a)(10)) to apply, the evidence need only show that the victim/witness was killed in retaliation for the act of testifying, regardless of the content of his testimony].)
CALJIC NOTE: See FORECITE F 8.81.10 n7.
F 725 Note 6 2004 Enlargement Of Witness-Murder Statute Should Not Apply To Pre-Enlargement Cases
The witness killing statute states that the special does not apply if “the killing was [] committed during the commission, or attempted commission, of the crime to which [the murder victim] was a witness.” (PC 190.2(a)(10).) However, the California Supreme Court radically redefined the “during the commission” element in People v. San Nicolas (2004) 34 CA4th 614, 655, when the Court was faced with the choice of redefinition or reversal. Without paying attention to the statutory element (“during the commission”), the Court held that the witnessed crime and the killing are not part of a “continuous criminal transaction” unless the defendant had “a common criminal intent toward all the victims upon the initiation of the first criminal act.” (See also People v. Clark (2011) 52 CA4th 856, 952.) Thus, San Nicolas judicially enlarged the scope of PC 190.2(a)(10) in a manner that was not reasonably foreseeable. Applying that judicial enlarged definition of the special circumstance to any crime committed before the date of the San Nicolas decision (Dec. 6, 2004) violates federal due process. (Bouie v. Columbia (1964) 378 US 347 [12 LEd2d 894; 84 SCt 1697.) While the California Supreme Court won’t agree, a federal habeas court might.
F 725 Note 7 Witness Murder Special: (“Yoshiato Window” (Prop 115)) (PC 190.2(a)(10))
In People v. Weidert (1985) 39 C3d 836, 842-52, the court held that the special circumstance established by PC 190.2(a)(10) did not include the intentional killing of a witness in a juvenile proceeding. Proposition 115 overturned Weidert by expressly providing that the special applies to the killing of witnesses in juvenile proceedings as defined in California WI 602 and WI 707. Since the statute specifically refers to those sections and no others, it does not apply to the killing of witnesses in other juvenile-type proceedings such as dependency hearings. (WI 300.)
Because this amendment changed the legal consequences of criminal behavior to the defendant’s detriment, it may only be applied to crimes committed after June 6, 1990. (Tapia v. Superior Court (1991) 53 C3d 282, 297-99; People v. Sweet (1989) 207 CA3d 78, 82.)
Moreover, because of the confusion regarding whether Proposition 114 would take precedence over Proposition 115, it may also be argued that Proposition 115 may not be applied to crimes committed before June 25, 1992, when the Supreme Court’s decision in Yoshiato v. Superior Court (1992) 2 C4th 978 clarified the validity of Proposition 115.
There are at least three legal principles upon which such a claim may be made:
1) Due Process/Notice under the State (Art. I §15) and Federal (14th Amendment) constitutions. (See People v. Green (1991) 227 CA3d 692, 698.)
2) Ex Post Facto/Due Process principle which precludes the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (1988) 205 CA3d 514, 518.)
3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (1980) 447 US 343, 346 [65 LEd2d 175].)
(An even stronger argument applies to the window between the Court of Appeal decision in Yoshiato and the grant of review: 8/5/91 – 10/24/91.)
However, in People v. Superior Court (Clark) (1994) 22 CA4th 1541, 1550-51, the court rejected the argument that the subsequently superseded opinion in Yoshiato raises due process and ex post facto issues regarding crimes committed during the period between issuance of the Yoshiato appellate opinion and acceptance of the case for review by the California Supreme Court. The argument was rejected on the basis that the Yoshiato opinion was never final and therefore never had any precedential value.
CALJIC NOTE: See FORECITE F 8.81.10 n1.
