SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 750 Special Circumstances: Prior Murder Conviction, PC 190.2(a)(2)—Trial on Prior Murder, PC 190.1(a) & (b)
TABLE OF CONTENTS
F 750.1 Titles And Identification Of Parties
F 750.1 Inst 1 Special Circumstances: Prior Murder Conviction—Title
F 750.1 Inst 2 Identification Of Prosecution And Defendant
F 750.2 Instructions
F 750.2 Inst 1 No Duty To Decide
F 750 NOTES
F 750 Note 1 Special Circumstances: Prior Murder Conviction—CALCRIM Cross References And Research Notes
F 750 Note 2 Murder With Prior Conviction Of Murder (PC 190.1(b)/PC 190.2(a)(2)/PC 190.2(b)): Intent To Kill Is Required Element Of Prior Murder For Accomplices (PC 190.2(b))
F 750 Note 3 Murder With Prior Conviction Of Murder (PC 190.1(b)/PC 190.2(a)(2)/PC 190.2(b)): No Intent to Kill Required For Prior Murder Special As To Actual Killer (PC 190.2(a))
F 750 Note 4 Murder With Prior Conviction Of Murder: Inapplicable To Conviction From Another Jurisdiction Which Could Not Have Been Tried As Murder In California
Return to Series 700 Table of Contents.
F 750.1 Titles And Identification Of Parties
F 750.1 Inst 1 Special Circumstances: Prior Murder Conviction—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 750.1 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 750.2 Instructions
F 750.2 Inst 1No Duty To Decide
*Modify CC 750, paragraph 4, as follows [added language is underlined]:
[In deciding, if you can, whether the People have proved this special circumstance, consider only the evidence presented in this proceeding. Do not consider your verdict or any evidence from the earlier part of the trial.]
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 750 Notes
F 750 Note 1 Special Circumstances: Prior Murder Conviction—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 750 Note 2 Murder With Prior Conviction Of Murder (PC 190.1(b)/PC 190.2(a)(2)/PC 190.2(b)): Intent To Kill Is Required Element Of Prior Murder For Accomplices (PC 190.2(b))
Under former PC 190.2(b), a prior murder special circumstance could be charged against an accomplice even though the accomplice did not harbor “intent to kill.” (Carlos v. Superior Court (1983) 35 C3d 131, 142.)
Proposition 115 amends PC 190.2(b) to delete the exemption from the “intent to kill” requirement for accomplices with prior murder convictions. It explicitly provides that an “intent to kill” is a required element for accomplices in all special circumstance cases.
This Amendment applies to all cases not final on June 6, 1990. (See Tapia v. Superior Court (1991) 53 C3d 282, 297-99; People v. Rossi (1976) 18 C3d 195, 299-302.)
NOTE: It is still not necessary to prove that the accomplice harbored an “intent to kill” in the commission of the prior murder which underlies the prior murder special circumstance.
CALJIC NOTE: See FORECITE F 8.82 n1.
F 750 Note 3 Murder With Prior Conviction Of Murder (PC 190.1(b)/PC 190.2(a)(2)/PC 190.2(b)): No Intent to Kill Required For Prior Murder Special As To Actual Killer (PC 190.2(a))
(See People v. Neely (1993) 6 C4th 877, 899.)
CALJIC NOTE: See FORECITE F 8.82 n2.
F 750 Note 4 Murder With Prior Conviction Of Murder: Inapplicable To Conviction From Another Jurisdiction Which Could Not Have Been Tried As Murder In California
(See FORECITE F 8.81.2 n3.)
