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F 8.81.7 n1 Killing A Peace Officer: (PC 190.2 (a)(7) Is Included In Killing To Avoid Arrest (PC 190.2 (a)(5)).
It is well established that a crime is a lesser included offense of another if “the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” (People v. Geiger (84) 35 C3d 510, 517, fn 4 [199 CR 45].) Under this principle, the killing of a peace officer special (PC 190.2 (a)(7)) is included in the avoiding arrest special (PC 190.2 (a)(5).) The avoiding arrest special is predicated upon the killing of an officer and therefore the killing of a peace officer is necessarily included therein. This is so even though these are special enhancements rather than substantive offenses. Lesser-included offense principles have been held applicable to enhancements. Most notably, “arming” (PC 12022(a)) is a lesser-included charge of gun use under PC 12022.5. (See e.g., People v. Wandick (91) 227 CA3d 918, 925-27 [278 CR 274]; People v. Allen (85) 165 CA3d 616, 626-27 [211 CR 837]; People v. Hays (83) 147 CA3d 534, 543-51 [195 CR 252].) Similarly, in sex offense cases, “arming” under PC 12022.3(b) is necessarily included within “use” under PC 12022.3(a). (People v. Turner (83) 145 CA3d 658, 683-84 [193 CR 614]; cf. People v. Manning (92) 5 CA4th 88, 90-91 [6 CR2d 671] [questioning Turner but not specifically disagreeing with its holding on jury instructions].) Accordingly, the jury should be instructed that these two specials are charged in the alternative and only one of the two may be found to be true.
F 8.81.7 n2 Peace Officer Special Requires Actual Knowledge.
PC 190.2(a)(7) and PC 190.2(a)(8) allows the special to be found if the defendant ‘knew, or reasonably should have known, that the victim was a peace officer …’ This allows a death sentence to be based upon the equivalent of criminal negligence. (See Williams v. Garcetti (93) 5 C4th 561, 574 [20 CR2d 341]; see also People v. Simon (95) 9 C4th 493, 507-23 [37 CR2d 278].) Yet the California Supreme Court has held that criminal negligence is not even sufficient to support implied malice for second degree murder. (People v. Watson (81) 30 C3d 290, 296-7 [179 CR 43].)
Therefore, allowing a special circumstance to be predicated on criminal negligence violates the 8th Amendment of the federal constitution which requires that the death eligibility determination (i.e., the special circumstance determination in California) must rationally narrow the class of individuals who are death eligible for valid penological reason(s). (Spaziano v. Florida (84) 468 US 447, 460, n 7 [82 LEd2d 340; 104 SCt 3154]; see also Tison v. Arizona (87) 481 US 137, 149 [95 LEd2d 127; 107 SCt 1676].) This principle requires a State to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (90) 497 US 764 [111 LEd2d 606, 619; 110 SCt 3092] [quoting Godfrey v. Georgia (80) 446 US 420, 433 [64 LEd2d 398; 100 SCt 1759]; 8th & 14th Amendments.) Death eligibility which is predicated upon nothing more than criminal negligence does not satisfy these 8th Amendment principles.
F 8.81.7a
Peace Officer, Etc. Special: “Should Know” Standard Requires
Consideration Of A Reasonable Person In Defendant’s Position
*Add to CJ 8.81.7:
[See FORECITE F 7.32a.]
F 8.81.7b
Killing Peace Officer In Retaliation For Performance
Of Duties: Subjective Standard
(PC 190.2(a)(7); PC 190.2(a)(8))
*Add to CJ 8.81.7:
In determining whether the victim was intentionally killed in retaliation for the performance of [his] [her] duties, you must consider only the subjective intent of the defendant. Thus, it is not sufficient to simply find that a reasonable person in the defendant’s position should have known that the person killed was a law enforcement officer engaged in the performance of [his] [her] duties. You must find that the defendant actually knew that the victim was a law enforcement officer engaged in the performance of [his] [her] duties and that the officer was intentionally killed in retaliation for the performance of those duties.
Points and Authorities
The “in retaliation for” section of PC 190.2(a)(7) and PC 190.2(a)(8) establishes a purely subjective standard, without any “reasonable belief” qualifier as follows: “The victim was a police officer … who, while engaged in the performance of his or her duties was intentionally killed, and the defendant knew or reasonably should have known that the victim was a police officer engaged in the performance of his or her duties; or the victim was a police officer … and was intentionally killed in retaliation for the performance of his or her official duties.”
The “reasonably should have known” language appears only in the killed “while engaged in performance of duties” part of PC 190.2(a)(7) and PC 190.2(a)(8), which provide capital sanction protection for any officer while engaged in conduct which a reasonable person would understand to be part of the officer’s official duties. That portion of the statute does not ask anything about the motivation of the killer; its focus is on what the officer is doing when killed. The “in retaliation for” prong of PC 190.2(a)(7) and PC 190.2(a)(8) is quite different. Its focus is on what motivated the killer. Why did he kill? It must be “in retaliation for the officer’s performance of official duties.” The question is purely subjective. If the killer acted because he thought the officer had made a pass at the killer’s girlfriend, cheated the killer at cards, or manipulated witnesses to manufacture evidence against him, then the killer may have been motivated by a desire for retaliation, but it was not retaliation for the officer’s performance of his/her official duties — and the reasonableness or unreasonableness of the killer’s belief that the officer had done whatever the killer was angry about is irrelevant.
Hence, it is the officer’s conduct, as understood by the killer, that is determinative. (See e.g., People v. Weidert (85) 39 C3d 836, 853-54 [218 CR 57] [for witness killing special (PC 190.2(a)(10)) it is the defendant’s “subjective interest that is relevant”].) For example, if the killer believed the officer was acting unlawfully (e.g., manufacturing evidence), and killed him for that reason, he was seeking to retaliate for conduct which clearly was not within the scope of the victim’s official duties.
Moreover, to the extent the statutory language is ambiguous, it should be resolved in favor of the defendant. (Weidert, 39 C3d at 848.) Ambiguous statutory elements implicate federal constitutional principles of due process and fair notice (5th and 14th Amendments). (See Dunn v. U.S. (79) 442 US 100, 112-13 [60 LEd2d 743; 99 SCt 2190].)
Accordingly, the jury should be instructed as set forth above to assure that it fully understands the subjective element of the special circumstance.
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(C).]
Moreover, when the special circumstance is utilized as a death qualifier, it violates the 8th Amendment of the federal constitution for the special circumstance to be returned without a determination by the jury under correct instructions that all elements of the special circumstance have been proven. Such an error also violates the 8th Amendment because it undermines the reliability of the special circumstance verdict and the resultant death sentence.
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-687.]
F 8.81.7c
Federal Law Enforcement Office or Agent Special Circumstance:
Improper To Direct Verdict On Element.
*Modify CJ 8.81.7 to DELETE the following:
[For the purposes of these instructions, a _________ is a federal law enforcement officer or agent.]
Points and Authorities
[See FORECITE F 8.81.19a.]