Return to CALJIC Part 5-8 – Contents
F 8.81.10 n1 Witness Murder Special: (“Yoshiato Window” (Prop 115)) (PC 190.2(a)(10)).
In People v. Weidert (85) 39 C3d 836, 842-52 [218 CR 57], the court held that the special circumstance established by PC 190.2(a)(10) did not include the intentional killing of a witness in a juvenile proceeding. Proposition 115 overturned Weidert by expressly providing that the special applies to the killing of witnesses in juvenile proceedings as defined in California WI 602 and WI 707. Since the statute specifically refers to those sections and no others, it does not apply to the killing of witnesses in other juvenile-type proceedings such as dependency hearings. (WI 300.)
Because this amendment changed the legal consequences of criminal behavior to the defendant’s detriment, it may only be applied to crimes committed after June 6, 1990. (Tapia v. Superior Court (91) 53 C3d 282, 297-99 [279 CR 592]; People v. Sweet (89) 207 CA3d 78, 82 [254 CR 567].)
Moveover, because of the confusion regarding whether Proposition 114 would take precedence over Proposition 115, it may also be argued that Proposition 115 may not be applied to crimes committed before June 25, 1992, when the Supreme Court’s decision in Yoshiato v. Superior Court (92) 2 C4th 978 [9 CR2d 102] clarified the validity of Proposition 115.
There are at least three legal principles upon which such a claim may be made:
1) Due Process/Notice under the State (Art. I § 15) and Federal (14th Amendment) constitutions. (See People v. Green (91) 227 CA3d 692, 698 [278 CR 140].)
2) Ex Post Facto / Due Process principle which preclude the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (88) 205 CA3d 514, 518 [252 CR 418].)
3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175].)
(An even stronger argument applies to the window between the Court of Appeal decision in Yoshiato and the grant of review: 8/5/91 – 10/24/91.) [Additional analysis of “Yoshiato Window” (Phillips and Thoma) published in CACJ Forum Vol. 20 / No. 1, pp. 66-71, is available to FORECITE subscribers. Ask for Article Bank # A-28.]
However, in People v. Superior Court (Clark) (94) 22 CA4th 1541, 1550-51 [28 CR2d 46], the court rejected the argument that the subsequently superseded opinion in Yoshiato raises due process and ex post facto issues regarding crimes committed during the period between issuance of the Yoshiato appellate opinion and acceptance of the case for review by the California Supreme Court. The argument was rejected on the basis that the Yoshiatoopinion was never final and therefore never had any precedential value.
F 8.81.10 n2 Witness Murder Special: Definition Of “Juvenile Proceeding” (PC 190.2(a)(10)).
A capital defendant is entitled to a jury finding on every element of a special circumstance. (People v. Odle (88) 45 C3d 386, 410-12 [247 CR 137].) Therefore, the court should instruct the jury on the definition of a juvenile proceeding as set forth in WI 602 and WI 707.
F 8.81.10 n3 Witness Murder Special: Elements Of CJ 8.81.10 Approved (PC 190.2(a)(10)).
The elements of the witness murder special circumstance as set forth in CJ 8.81.10 were approved in People v. Sanders (90) 51 C3d 471, 518-19 [273 CR 537].
F 8.81.10 n4 Witness Murder Special: Prevention of Testimony Need Not Be Predominant Purpose Of The Murder.
People v. Stanley (95) 10 C4th 764, 800 [42 CR2d 543] held that there is no sua sponte duty to instruct the jury that in order to find the special circumstance true, the jury must find the predominant purpose of the murder was to prevent the testimony.
F 8.81.10 n5 Witness Murder Special: Not Limited To Eyewitnesses.
People v. Jones (96) 13 C4th 535 [54 CR2d 42] held that nothing in the language of the applicable special circumstance or in the decisions of the court supports the suggestion that the special circumstance for killing a witness (PC 190.2(a)(10)) is confined to the killing of an “eyewitness” as opposed to any other witness who might testify in a criminal proceeding.
F 8.81.10 n6 Witness Murder Special: No Requirement That Victim Be An Eyewitness To A Prior Crime.
People v. Jones (96) 13 C4th 535, 549-51 [54 CR2d 42] held that the witness murder special circumstance for PC 190.2(a)(10) does not require that the victim be an eyewitness to a prior crime as opposed to any other witness who might testify in a criminal proceeding.
F 8.81.10 n7 Witness Murder Special: Content Of Testimony Irrelevant.
(See People v. Bolter (2001) 90 CA4th 240 [108 CR2d 760] [for witness-killing special circumstance (PC 190.2(a)(10)) to apply, the evidence need only show that the victim/witness was killed in retaliation for the act of testifying, regardless of the content of his testimony].)
F 8.81.10 n8 Witness Murder Special: Crime Witnessed Must Have Been Prior To And Separate From The Killing — Continuous Transaction Does Not Qualify.
(See People v. San Nicolas (2004) 34 C4th 614, 655.)