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F 8.82 n1 Murder With Prior Conviction Of Murder (PC 190.1(b)/PC 190.2(a)(2)/PC 190.2(b)).
Intent To Kill Is Required Element Of Prior
Murder For Accomplices (PC 190.2(b))
Under former PC 190.2(b), a prior murder special circumstance could be charged against an accomplice even though the accomplice did not harbor “intent to kill.” (Carlos v. Superior Court (83) 35 C3d 131, 142 [197 CR 79].)
Proposition 115 amends PC 190.2(b) to delete the exemption from the “intent to kill” requirement for accomplices with prior murder convictions. It explicitly provides that an “intent to kill” is a required element for accomplices in all special circumstance cases.
This Amendment applies to all cases not final on June 6, 1990. (See Tapia v. Superior Court (91) 53 C3d 282, 297-99 [279 CR 592]; People v. Rossi (76) 18 C3d 195, 299-302 [134 CR 64].)
NOTE: It is still not necessary to prove that the accomplice harbored an “intent to kill” in the commission of the prior murder which underlies the prior murder special circumstance.
F 8.82 n2 Murder With Prior Conviction Of Murder (PC 190.1(b)/PC 190.2(a)(2)/PC 190.2(b)).
No Intent to Kill Required For Prior Murder
Special As To Actual Killer (PC 190.2(a))
(See People v. Neely (93) 6 C4th 877, 899 [26 CR2d 189].)
F 8.82 n3 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 8.82 n4 Murder With Prior Conviction Of Murder: Inapplicable To Conviction From Another Jurisdiction Which Could Not Have Been Tried As Murder In California.
(See FORECITE F 8.81.2 n3.)