Return to CALJIC Part 5-8 – Contents
F 8.81.1 n1 Financial Gain Need Not Be the Dominant Motive But Green Rule May Apply (PC 190.2(a)(1)).
There is no obligation to instruct the jury that the financial gain motive was a dominant, substantial, or significant motive for the murder. Nor is there any obligation to instruct that financial gain was the “primary goal” of the killing. (People v. Michaels (2002) 28 C4th 486, 520 [122 CR2d 285]; see also People v. Noguera (92) 4 C4th 599, 634-36 [15 CR2d 400]; People v. Jackson (96) 13 C4th 1164, 1229 [56 CR2d 49] [CJ 8.81.1 accurately reflects requirement that defendant intentionally commit the murder for financial gain].) However, the Noguera court did implicitly recognize that if the evidence supported a claim that the requisite intent to the special circumstance finding was somehow “ancillary” to the commission of the murder, such an instruction might be required under the authority of People v. Green (80) 27 C3d 1, 61 [164 CR 1]. (Noguera 4 C4th at 636.)
F 8.81.1 n2 Financial Gain Special: No Sua Sponte Duty To Instruct As To Concurrence Of Intent (PC 190.2(a)(1)).
There is no sua sponte obligation of the trial judge to instruct that the defendant must possess the required intent at the time of the killing. (Noguera 4 C4th at 635.) However, because such concurrence of the killing and intent is a required element of the financial gain circumstance, the failure to instruct upon this element may implicate federal due process. (See FORECITE F 3.31.5; FORECITE PG VII.) Moreover, if a theory of the defense focused upon the concurrence of act and intent element then, at a minimum, the defense should have a right to a pinpoint instruction upon this issue. (See generally FORECITE PG III(A).)
F 8.81.1 n3 Financial Gain Special: Role Of Motive Instruction (CJ 2.51) (PC 190.2(a)(1)).
CJ 2.51 (motive is not an element of the crime charged and need not be proven) does not erroneously permit the jury to dispense of proof of the financial gain special circumstance. (Noguera 4 C4th at 637.) However, there certainly is no reason why CJ 2.51 should not be modified to clarify this point upon request.
F 8.81.1 n4 Victim’s Death Must Be Essential Prerequisite Of The Financial Gain (PC 190.2(a)(1)).
The California Supreme Court has consistently held that a financial gain allegation may not be submitted to the jury unless there is evidence to the effect that “the victim’s death [was] the consideration for, or an essential prerequisite to, the financial gains sought by the defendant.” (People v. Howard (92) 1 C4th 1132, 1180-81 [5 CR2d 268]; see also People v. Mickey (91) 54 C3d 612, 678 [286 CR 801].) Hence, when appropriate the jury should be so instructed.
F 8.81.1 n5 Financial Gain Special: Imputation Of Motive To Aider And Abettor.
People v. Padilla (95) 11 C4th 891 [47 CR2d 426] held that the jury instruction on the financial gain special circumstance (PC 190.2(a)(1)) was proper in permitting the motive of the actual killer to be imputed to the defendant, an aider and abettor. The court held that in an aiding and abetting case, there is no requirement that the jury make an individual determination that the defendant’s individual motive be to provide financial gain to induce the murder.
However, the court did not address the argument that because the special circumstance is a sentencing enhancement provision, derivative liability is only permissible when the statute expressly provides for it. (See FORECITE F 8.67a.)