SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 730 Special Circumstances: Murder In Commission Of Felony, PC 190.2(a)(17)
TABLE OF CONTENTS
F 730.1 Titles And Identification Of Parties
F 730.1 Inst 1 Special Circumstances: Murder in Commission of Felony—Title
F 730.1 Inst 2 Identification Of Prosecution And Defendant
F 730.2 Instructions
F 730.2 Inst 1 Whether Defendant Personally Committed The Felony: Modification Of Burden Shifting Language
F 730.2 Inst 2 Special Circumstances: Felony Murder—Jurors Not Required To Decide Special Circumstance
F 730.2 Inst 3 Special Circumstances: Felony Murder—Independent Purpose; Modification Of Burden Shifting Language
F 730.2 Inst 4 Linking Special Circumstance To the Murder To Which It Relates
F 730.2 Inst 5 Felony Murder Special Circumstances Application Of Merger (Ireland) Doctrine (PC 190.2(a)(17))
F 730.2 Inst 6 Felony Murder Special Circumstance “Still-In-Progress” Instruction Inapplicable To Crimes Other Than Robbery (PC 190.2(a)(17))
F 730.2 Inst 7 (a & b) Felony Murder Special Circumstance: Green Pinpoint Instruction
F 730.2 Inst 8 Accident Should Be Defense To Felony Murder Special Circumstance
F 730.2 Inst 9 Felony Murder Special: Specification Of Reckless Indifference, Major Participant And Actual Killer Elements
F 730.2 Inst 10 “Engaged In” vs. “Committed”
Return to Series 700 Table of Contents.
F 730.1 Titles And Identification Of Parties
F 730.1 Inst 1 Special Circumstances: Murder In Commission Of Felony—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 730.1 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 730.2 Instructions
F 730.2 Inst 1 Whether Defendant Personally Committed The Felony: Modification Of Burden Shifting Language
*Modify CC 730 Element 3 as follows [added language is underlined; deleted language is stricken]:
<Give element 3 if there is a reasonable basis upon which a juror could have a reasonable doubt that the defendant did not personally committed or attempted felony.>
[3. If Either:
A. The defendant did not personally committed [or attempted to commit] __________ <insert felony or felonies from Pen. Code, §190.2(a)(17)>,;
OR
B. then A perpetrator, (whom the defendant was aiding and abetting/ [or] with whom the defendant conspired), personally commited [or attempted to commit] __________ <insert felony or felonies from Pen. Code, §190.2(a)(17)>;]
Points and Authorities
See FORECITE F 404.2 Inst 1.
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 730.2 Inst 2 Special Circumstances: Felony Murder—Jurors Not Required To Decide Special Circumstance
*Modify CC 730, paragraph 3, last sentence as follows [added language is underlined]:
You must apply those instructions when you attempt to decide whether the People have proved this special circumstance.
Points and Authorities
See FORECITE F 100.7 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.]
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 730.2 Inst 3 Special Circumstances: Felony Murder—Independent Purpose; Modification Of Burden Shifting Language
*Modify CC 730, paragraph 5, as follows [added language is underlined; deleted language is stricken]:
[In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit __________ <insert felony or felonies from Pen. Code, §190.2(a)(17)> independent of the killing. If you find The defendant contends that the defendant (he/she) only intended to commit murder and the commission of _____________ <insert felony or felonies from Pen. Code,§190.2(a)(17)> was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.] However, the defendant does not need to prove that __________ <insert felony or felonies from Pen. Code, §190.2(a)(17)> was merely part of or incidental to the commission of the killing. If you have a reasonable doubt whether the prosecution has proven that the __________ <insert felony or felonies from Pen. Code, §190.2(a)(17)> was independent of the killing beyond a reasonable doubt then you must find the felony murder special circumstance to be untrue.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Improper Burden Shifting—See generally FORECITE F 404.2 Inst 1 [burden shifting]; see also FORECITE F 730.2 Inst 7; People v. York (1992) 11 CA4th 1506, 1511-12.
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 730.2 Inst 4 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 730.2 Inst 5 Felony Murder Special Circumstances Application Of Merger (Ireland) Doctrine (PC 190.2(a)(17))
*To be added at end of CC 730:
You may not convict the defendant of first degree murder based upon the commission or attempted commission of burglary if the defendant entered the premises with the intent to [murder] [assault]. [You may return a first degree verdict based on the burglary only if you find that the defendant had the non-assaultive intent to __________ when [he] [she] entered.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Applicability Of Merger Doctrine—In People v. Garrison (1989) 47 C3d 746, 788-89, the Supreme Court held that the merger doctrine, (People v. Ireland (1969) 70 C2d 522), applies to the felony murder special circumstance set forth in PC 190.2(a)(17).
Accordingly, the jury may not return this special circumstance if the underlying felony was an integral part of the murder. (See People v. Farmer (1989) 47 C3d 888, 914-15.)
In a situation where the underlying felony is a burglary and there is both an assaultive and non-assaultive intent alleged, the bracketed portion of the above instruction should be given to eliminate juror confusion about the applicability of the burglary to the special circumstance.
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.
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
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.
NOTES
Applicability Of Merger Doctrine To Arson Special Circumstance. (See also People v. Ockerman UNPUBLISHED (E008125) [failure to instruct on merger doctrine as to arson special circumstance held to be prejudicial error].) [See Opinion Bank # O-108 for the Ockerman opinion.]
CALJIC NOTE: See FORECITE F 8.81.17a.
F 730.2 Inst 6 Felony Murder Special Circumstance: “Still-In-Progress“ Instruction Inapplicable To Crimes Other Than Robbery (PC 190.2(a)(17))
*To be added at end of CC 730:
The crime of __________ is complete when the defendant no longer has control of the victim.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
When Crime Is Complete—For purposes of felony murder a crime generally is complete when the victim is no longer detained. (See People v. Silva (1988) 45 C3d 604, 632; People v. Guzman (1988) 45 C3d 915, 953-54; see also People v. Thompson (1990) 50 C3d 134, 171-72, holding that for purposes of the felony murder rule, a violation of PC 288 continues only so long as the defendant has “control“ of the victim; see also People v. Castro (1994) 24 CA4th 578, 586 [same as to rape].)
The one exception is robbery which continues until the defendant reaches a place of temporary safety. (See People v. Cooper (1991) 53 C3d 1158, 1164-65.) Therefore, except when the underlying felony is robbery, the above supplement to CJ 8.81.17 should be given.
The court has a sua sponte obligation to instruct the jury as to when the underlying felony ends. (People v. Pearch (1991) 229 CA3d 1282, 1299.)
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.
