Return to CALJIC Part 5-8 – Contents
F 8.24 n1 Murder By Torture: Research Notes.
See Annotation, What Constitutes Murder by Torture, 83 ALR3d 1222 and Later Case Service.
F 8.24 n2 Murder By Torture: Consciousness Of Guilt: Does Not Prove Degree Of Crime (PC 189).
The essence of consciousness of guilt evidence is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, does not have any logical relevance as to the degree of the crime the defendant committed. [For a sample limiting instruction, and additional authorities on this point, see FORECITE F 2.06a.]
F 8.24 n3 Murder By Torture: “Sadistic Purpose” As Unconstitutionally Vague (PC 189).
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; Calif. Constitution, Art. I, §§ 7, 17.) (People v. Mirmiani (81) 30 C3d 375, 382 [178 CR 792].) Moreover, in a capital case, a vague statutory term may also violate the 8th Amendment. (See Godfrey v. Georgia (76) 428 US 153, 189, 206-07 [489 LEd2d 859].)
In People v. Raley (92) 2 C4th 870, 897-902 [8 CR2d 678], 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 (93) 14 CA4th 1137, 1140-42 [18 CR2d 274].) 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.)
F 8.24 n4 2nd Degree Torture Murder As LIO Of 1st Degree Torture Murder (PC 189).
By virtue of PC 189, murder committed by means of torture is 1st degree murder. Necessarily included in a torture murder charge is the substantive crime of torture (PC 206) and, possibly, 2nd degree implied malice murder. For example, to be guilty of torture murder under PC 189, the defendant must have a “deliberate and premeditated intent to inflict extreme and prolonged pain. (People v. Steger (76) 16 C3d 539, 545-46 [128 CR 161].) For the crime of torture murder, the current CJ instruction requires only a “specific intent to cause cruel or extreme pain and suffering.” (But see FORECITE F 9.90 n3 arguing that the definition of the substantive crime of torture and 1st degree torture murder should be the same.) Hence, if there is evidence from which the jury could conclude that the defendant had an intent to cause cruel or extreme pain, but did not have a premeditated and deliberate intent to cause extreme and prolonged pain, then the defendant could be convicted of the lesser offenses of 2nd degree implied malice murder or substantive torture.
F 8.24 n5 Murder By Torture: Legislative Alert.
As of January 1, 2000, PC 189 was amended to include within the ambit of the felony murder rule any murder “which is committed in the perpetration of, or attempt to perpetrate…any act punishable under [PC] 206….” Since PC 206, the substantive torture offense, requires neither an intent to inflict prolonged pain nor a willful deliberate and premeditated intent to inflict pain (see FORECITE F 9.90 n3), there may now be a conflict between first degree murder based on torture under the felony murder rule as opposed to first degree murder based on torture as a form of willful, deliberate and premeditated killing as specified in the first portion of PC 189 and in CJ 8.24.
F 8.24 n6 Second Degree Felony Murder As Lesser Included Offense Of First Degree Torture Murder.
(See People v. Cole (2004) 33 C4th 1158, 1219-21 [recognizing argument that second degree felony murder based on the predicate felony of torture (PC 206) may be a lesser included offense of murder by torture but rejecting the argument because PC 206 was not extant when the defendant was tried].)
F 8.24a
Murder By Torture: Requirement That Victim Be Alive
(PC 189)
*To be added to CJ 8.24 as element of torture:
The torturous acts were committed while the victim was alive.
Points and Authorities
Because a deceased person cannot feel pain, torture cannot occur without a living victim. (People v. Franc (90) 218 CA3d 588, 595 [267 CR 109].) 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 (85) 41 C3d 247, 266-67 [221 CR 794].) 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.
CJ 8.24 does not make this clear to the jury. It provides for a finding of torture if there was an “intent to inflict pain upon a living human being …” This language is misleading because it focuses upon the intent of the defendant and not the actual fact of whether or not the victim was alive. For example, even if the victim was dead prior to the infliction of the torturous acts, then under the literal CALJIC language the jury could make a finding of torture provided the defendant thought the victim was alive.
This misdirection is exacerbated by the immediately following paragraph which informs the jury that “the crime of murder by torture does not require … any proof that the victim was aware of pain or suffering.”
Hence, a third element should be added to CJ 8.24 which sets forth the requirement that the victim be living when the torture was inflicted. (See CJ 8.81.18 which already includes this element for the torture special circumstance.)
In People v. St. Joseph (90) 226 CA3d 289, 296-97 [277 CR 498], the court concluded that CJ 8.24 adequately informs the jury that the torturous acts causing the death must have been committed while the victim was alive. However, this conclusion is suspect because the St. Joseph court failed to consider the ambiguity resulting from the manner in which the instruction focuses upon the intent of the defendant and not upon the actual fact of whether or not the victim was alive. Moreover, the court in St. Joseph merely concluded that the instruction was “reasonably susceptible” to the court’s interpretation and, therefore, was sufficient to support the judgment. (Id. at 296-97.) Hence, St. Joseph should not preclude modification of CJ 8.24 upon request to clarify the elements of the offense, especially since the requested modification merely brings CJ 8.24 into conformity with the elements set forth in CJ 8.81.18.
In People v. Burnett (93) 12 CA4th 469, 479-80 [15 CR2d 638], the court concluded as follows: “Appellants argue that since the instruction only states a perpetrator must intend to torture ‘a living human being,’ a human being, when ‘tortured’ may not have been alive. ¶ This argument has been considered and rejected by People v. St. Joseph (90) 226 CA3d 289, 296, 297 [276 CR 498] (see also People v. Mincey (92) 2 C4th 408, 436), a case with which we agree.” The Burnett court is wrong in its conclusion that St. Joseph “considered” the issue of whether the instruction improperly focuses upon the defendant’s intent rather than whether or not the victim is actually alive. St. Joseph considered the instruction in the context of an argument regarding the causation requirement for torture murder. Hence, neither St. Joseph nor Burnett (which relies upon St. Joseph without itself considering the issue) nor Mincey (which doesn’t consider the issue either) are authority for rejection of the FORECITE instruction. (See People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for matters not considered].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
See also FORECITE F 8.81.18 n2 [Torture Special Circumstance] and FORECITE F 9.90 et al. [Substantive Offense of Torture (Prop. 115)].
Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)
F 8.24b
Torture: Definition Of Premeditation And Deliberation
(PC 189)
*Instead of definitions appearing in CJ 8.24 give CJ 8.20 (modifications of CJ 8.24 are capitalized):
The word “willful”, as used in the preceding instruction, means intentional. The word “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing considerations for and against the proposed course of action. The word “premeditated” means considered beforehand.
If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant TO INFLICT EXTREME AND PROLONGED PAIN UPON THE VICTIM, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to inflict pain which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time but, rather, the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to inflict pain, is not such deliberation and premeditation as it will fix an unlawful killing as murder of the first degree.
To constitute a deliberate and premeditated intent TO INFLICT PAIN, the defendant must weigh and consider the question of inflicting the pain and the reasons for and against such choice and having in mind the consequences, [he] [she] decides to and does INFLICT THE PAIN.
Points and Authorities
In People v. Steger (76) 16 C3d 539, 545-46 [128 CR 161], the Supreme Court held that first degree torture murder requires a willful, deliberate and premeditated intent to inflict extreme and prolonged pain. More recent cases provide further support for the proposition that torture requires willful, deliberate and premeditated intent. In People v. Morales (89) 48 C3d 527, 559-60 [257 CR 64], the Supreme Court noted “[w]e have held that murder by torture requires a premeditated intent to inflict extreme and prolonged pain. [Citation].” (Id. at 599.)
In People v. Bittaker (89) 48 C3d 1046, 1100-01 [259 CR 630], the court, in considering language in People v. Wiley (76) 18 C3d 162, 168-173 [133 CR 135], observed, “we explained … that Steger did not define all the elements of murder by torture, but was concerned only with establishing that the act of torture must be premeditated.” (Bittaker at 1101 (emphasis added); see also, People v. Davenport (85) 41 C3d 247, 269 [221 CR 794].)
CJ 8.24 now includes the willful, deliberate and premeditated intent element of torture. However, instead of the brief definitions appearing in CJ 8.24, CJ 8.20 with appropriate modifications should be given in conjunction with CJ 8.24.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 8.24c
Sadistic Purpose: Definition
(PC 189)
*Add to CJ 8.24:
Sadistic purpose is defined as for the purpose of sexual gratification.
Points and Authorities
The term “sadism” has always been defined in terms of sexual gratification. (See People v. Raley (92) 2 C4th 870, 900 [8 CR2d 678].) Hence, it is apparent that the use of this term in defining torture necessarily implies a sexual motivation. However, in Raley the court expanded the definition of “sadistic purpose” to include “the infliction of pain on another person for the purpose of experiencing pleasure.” (See also, People v. Healy (93) 14 CA4th 1137, 1140-42 [18 CR2d 274].) This definition of the term is overbroad and implicates the federal constitutional principles (8th Amendment: cruel and unusual punishment; 14th Amendment: due process.) Therefore, the jury should be instructed upon the sexual nature of the term.
F 8.24d
Modification When Crime Involves Fetal Victim
*Modify CJ 8.24 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
F 8.24e
Murder By Torture: Heat Of Passion To Negate
Mental State Required For Torture
*Add to CJ 8.24:
(See FORECITE F 8.73e.)