SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 733 Special Circumstances: Murder With Torture, PC 190.2(a)(18)
TABLE OF CONTENTS
F 733.1 Titles And Identification Of Parties
F 733.1 Inst 1 Special Circumstances: Murder With Torture—Title
F 733.1 Inst 2 Identification Of Prosecution And Defendant
F 733.2 Instructions
F 733.2 Inst 1 Special Circumstances: Torture—Acts Must Be Inflicted While Victim Was Alive
F 733.2 Inst 2 Special Circumstances: Torture—Concurrence Of Killing And Intent To Kill
F 733.2 Inst 3 Linking Special Circumstance To the Murder To Which It Relates
F 733 NOTES
F 733 Note 1 Special Circumstances: Murder With Torture—CALCRIM Cross References And Research Notes
F 733 Note 2 Torture Special: Proposition 115 Due Process/Ex Post Facto Issues: “Yoshiato Window” (PC 190.2(a)(18))
F 733 Note 3 No Causation Element For Torture-Murder Special Circumstance
F 733 Note 4 Torture Special: “Sadistic Purpose” As Unconstitutionally Vague (PC 190.2(a)(18))
Return to Series 700 Table of Contents.
F 733.1 Titles And Identification Of Parties
F 733.1 Inst 1 Special Circumstances: Murder With Torture—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 733.1 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 733.2 Instructions
F 733.2 Inst 1 Special Circumstances: Torture—Acts Must Be Inflicted While Victim Was Alive
*Modify CC 733, Element 4, at end of each alternative as follows [added language is underlined]:
<Alternative A— on or after June 6, 1990>
[4. The defendant did an act involving the infliction of extreme physical pain and suffering on __________ <insert name of decedent> while (he/she) was alive.]
<Alternative B—before June 6, 1990>
[4. The defendant in fact inflicted extreme physical pain on _________ <insert name of decedent> while (he/she) was alive.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requirement Of Living Victim—Because a deceased person cannot feel pain, torture cannot occur without a living victim. (People v. Franc (1990) 218 CA3d 588, 595.) Accordingly, where the evidence may be reasonably construed by the jury to establish that the victim died before the torturous acts were inflicted, a torture special circumstance cannot be returned. (Franc at 594; see also, People v. Davenport (1985) 41 C3d 247, 266-67.) By the same reasoning, unless the torturous acts were inflicted before death, the jury may not return a verdict of first degree murder based on torture pursuant to PC 189.
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 733.2 Inst 2 Special Circumstances: Torture—Concurrence Of Killing And Intent To Kill
*Modify CC 733 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.
F 733.2 Inst 3 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.1 Inst 1.
F 733 Notes
F 733 Note 1 Special Circumstances: Murder With Torture—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 733 Note 2 Torture Special: Proposition 115 Due Process/Ex Post Facto Issues: “Yoshiato Window” (PC 190.2(a)(18))
On June 6, 1990, Proposition 115 eliminated the requirement that the defendant actually inflict extreme pain upon the victim. Obviously, this change cannot be applied to crimes committed before June 6, 1990. (Tapia v. Superior Court (1991) 53 C3d 282, 297-99.)
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 preclude 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 8.81.18 n5.
F 733 Note 3 No Causation Element For Torture-Murder Special Circumstance
In People v. Crittenden (1994) 9 C4th 83, 141-42, it was held that the torture-murder special circumstance (PC 190.2(a)(18)) does not require a causal relationship between the acts of torture and death. (See also People v. Bemore (2000) 22 C4th 809, 842-43 [unlike PC 189, torture-murder special circumstance does not require causal relationship between tortuous act and the death].)
CALJIC NOTE: See FORECITE F 8.81.18 n6.
F 733 Note 4 Torture Special: “Sadistic Purpose” As Unconstitutionally Vague (PC 190.2(a)(18))
The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. (U.S. Constitution, 14th Amendment; California Constitution, Art. I, §§7,17.) (People v. Mirmiani (1981) 30 C3d 375, 382.) Moreover, in a capital case, a vague statutory term may also violate the 8th Amendment. (See Godfrey v. Georgia (1976) 428 US 153, 189, 206-07 [489 LEd2d 859]; see also Maynard v. Cartwright (1988) 486 US 356, 361 [100 LEd2d 372].)
In People v. Raley (1992) 2 C4th 870, 897-902, the California Supreme Court held that the term “sadistic purpose” is not unconstitutionally vague under the 8th or 14th Amendments. (See also People v. Healy (1993) 14 CA4th 1137, 1140-42.) However, this issue may still be preserved for federal habeas by requesting that the jury not be instructed upon this term on the grounds that it violates the 8th and 14th Amendments. (See also FORECITE F 9.90 n5 discussing unconstitutional vagueness of the terms “extortion,” “cruel” and “torture” as used in PC 206.)
CALJIC NOTE: See FORECITE F 8.81.18 n4.
