SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 810 NOTES
TABLE OF CONTENTS
F 810 Note 1 Torture: CALCRIM Cross-References And Research Notes
F 810 Note 2 Torture: Battery And Mayhem Lesser Included Offenses (PC 206)
F 810 Note 3 Second Degree Torture Murder Per PC 206 Included In Torture Murder (PC 206)
F 810 Note 4 Torture: Requirement Of Prolonged Pain (PC 206)
F 810 Note 5 Unconstitutional Vagueness Of The Terms “Cruel,” “Sadistic Purpose,” “Torture” And “Extortion” (PC 206)
F 810 Note 6 Torture: Evidence Required
F 810 Note 7 Torture: PC 206 Not Vague Or Overbroad
F 810 Note 8 Torture: Personal Infliction Of GBI Not Required (PC 206 / PC 12022.7)
Return to Series 800 Table of Contents.
F 810 Note 1 Torture: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 520 [First Degree Torture Murder]
CALCRIM 733 [Special Circumstances: Murder With Torture]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 810 Note 2 Torture: Battery And Mayhem Lesser Included Offenses (PC 206)
Assaultive Crimes (PC 245, PC 273a, PC 273d, PC 273.5) and battery (PC 242, PC 243 et seq.) should be lesser included offenses of torture (PC 206). The infliction of pain required for torture necessarily includes the commission of an act resulting in an unlawful touching of the victim.
CALJIC NOTE: See FORECITE F 9.90 n1.
F 810 Note 3 Second Degree Torture Murder Per PC 206 Included In Torture Murder (PC 206)
See FORECITE F 8.24 n4.
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
CALJIC NOTE: See FORECITE F 9.90 n2.
F 810 Note 4 Torture: Requirement Of Prolonged Pain (PC 206)
The Bench Notes to CC 810 cites cases for the proposition that prolonged pain is not required by PC 206. However, without such a requirement, torture may be found in any case where extreme pain was inflicted, even though the pain was only momentary or fleeting. (E.g., a severe blow or bullet to the head.) To allow a finding of torture in such a case would be inconsistent with the intent of the statute and would produce irrational results in violation of substantive due process. (See generally, Gray v. Whitmore (1971) 17 CA3d 1, 21; Blaylock v. Schwinden (9th Cir. 1988) 862 F2d 1352, 1354.) Hence, CJ 9.90 should be modified to require an intent to inflict “extreme and prolonged” pain. (See People v. Steger (1976) 16 C3d 539, 548; see also People v. Healy (1993) 14 CA4th 1137, 1140-42 [Steger definition of torture utilized for purposes of evaluating the sufficiency of evidence to support a PC 206 torture conviction].)
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
CALJIC NOTE: See FORECITE F 9.90 n4.
F 810 Note 5 Unconstitutional Vagueness Of The Terms “Cruel,” “Sadistic Purpose,” “Torture” And “Extortion” (PC 206)
As used in PC 206, the above terms may be unconstitutionally vague. Although the California Courts of Appeal have upheld the constitutionality of the statute. (See People v. Barrera (1993) 14 CA4th 1555, 1564-70; People v. Healy (1993) 14 CA4th 1137; see also People v. Aguilar (1997) 58 CA4th 1196 [PC 206 is not unconstitutionally vague or overbroad]), the constitutionality of the statute has not been resolved by the California Supreme Court or by the federal courts. (But see People v. Raley (1992) 2 C4th 870, 897-902 as to “sadistic purpose.”) [See Brief Bank # B-572 for briefing on these issues.]
RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).
CALJIC NOTE: See FORECITE F 9.90 n5.
F 810 Note 6 Torture: Evidence Required
[See Brief Bank # B-725 for briefing discussing the legislative history of PC 206 and the nature of the evidence required to support the crime of torture.]
CALJIC NOTE: See FORECITE F 9.90 n6.
F 810 Note 7 Torture: PC 206 Not Vague Or Overbroad
In People v. Aguilar (1997) 58 CA4th 1196 the court held that PC 206 is not unconstitutionally vague or overbroad and made a number of rulings regarding the law of torture under PC 206.
CALJIC NOTE: See FORECITE F 9.90 n7.
F 810 Note 8 Torture: Personal Infliction Of GBI Not Required (PC 206 / PC 12022.7)
(See People v. Lewis (2004) 120 CA4th 882, 889 [unlike PC 12022.7, PC 206 does not require personal infliction of torture].)
CALJIC NOTE: See FORECITE F 9.90 n8.