SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 736 Special Circumstances: Killing By Street Gang Member, PC 190.2(a)(22)
TABLE OF CONTENTS
F 736.1 Titles And Identification Of Parties
F 736.1 Inst 1 Special Circumstances: Killing by Street Gang Member—Title
F 736.1 Inst 2 Identification Of Prosecution And Defendant
F 736.2 Instructions
F 736.2 Inst 1 Gang Killing Special Circumstance: Specification Of Person Defendant Intended To Kill
F 736.2 Inst 2 Gang Killing Special Circumstance: Deletion Of Argumentative And Duplicative Language
F 736.2 Inst 3 Concurrence Of Act And Mental State (Knowledge)
F 736.2 Inst 4 Modification Of Language For Clarity And Precision
F 736.2 Inst 5 Gang Killing Special Circumstance: Concurrence Of Killing And Intent To Kill
F 736.2 Inst 6 Linking Special Circumstance To the Murder To Which It Relates
F 736.2 Inst 7 Defendant Must Intend To Kill The Decedent; Defendant Must Be Actual Killer
F 736 NOTES
F 736 Note 1 Special Circumstances: Killing by Street Gang Member—CALCRIM Cross-References And Research Notes
F 736 Note 2 Gang Killing Special Circumstance: Applicability Of Transferred Intent
F 736 Note 3 Predicate Offense Not Satisfied By A Crime Occurring After The Charged Offense
Return to Series 700 Table of Contents.
F 736 1 Titles And Identification Of Parties
F 736.1 Inst 1 Special Circumstances: Killing by Street Gang Member—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 736.1 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 736.2 Instructions
F 736.2 Inst 1 Gang Killing Special Circumstance: Specification Of Person Defendant Intended To Kill
*Modify CC 736 Element 1 as follows [added language is underlined]:
1. The defendant intended to kill ________ <insert name of decedent>;
Points and Authorities
See FORECITE F 820.2 Inst 1.
F 736.2 Inst 2 Gang Killing Special Circumstance: Deletion Of Argumentative And Duplicative Language
*Modify CC 736, paragraph 4 as follows:
[DELETE PARAGRAPH 4]
Points and Authorities
See FORECITE F 416.3 Inst 4.
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 736.2 Inst 3 Concurrence Of Act And Mental State (Knowledge)
*Modify CC 736, Element 3, as follows [added language is underlined]:
3. At the time of the killing the defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
Points and Authorities
See CALCRIM 736, Element 2; see also FORECITE F 251 Inst 3.
F 736.2 Inst 4 Modification Of Language For Clarity And Precision
*Modify CC 736, Element 4, as follows [added language is underlined; deleted language is stricken]:
4. The murder was carried out committed to further the activities of the criminal street gang.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—In the interests of “plain English,” “committed” is clearer and more precise than “carried out.”
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 736.2 Inst 5 Gang Killing Special Circumstance: Concurrence Of Killing And Intent To Kill
*Modify CC 736 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 736.2 Inst 6 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 736.2 Inst 7 Defendant Must Intend To Kill The Decedent; Defendant Must Be Actual Killer
*Modify CC 736, Element 1 as follows [added language is underlined]:
1. The defendant intended to kill _______________ <name of alleged victim>;
AND
2. The defendant was the actual killer of _______________ <name of decedent>;
AND
[Renumber remaining elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The language of the special circumstance requires that “[t]he defendant intentionally killed the victim. …” The draft instruction for this special circumstance also used this statutory language. So did CALJIC 8.81.22. However, the final version of the CALCRIM instruction only requires that “the defendant intended to kill.” This appears to be an incorrect statement of the law. The clear statutory language both requires that the defendant intended to kill the particular victim, and that the defendant be the actual killer. As written, defendant could not only qualify for the special circumstance because of a generalized intent to kill, but need not even be present at the scene at the time of the killing.
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 736 Notes
F 736 Note 1 Special Circumstances: Killing by Street Gang Member—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 736 Note 2 Gang Killing Special Circumstance
F 736 Note 2 Gang Killing Special Circumstance: Applicability Of Transferred Intent
See FORECITE F 702.2 Note 2.
F 736 Note 3 Predicate Offense Not Satisfied By A Crime Occurring After The Charged Offense
See People v. Duran (2002) 97 CA4th 1448-58.
