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DP III(B)

ISSUE CHECKLIST: SELECTED SPECIAL CIRCUMSTANCES [§DP-11]

  • NOTE: CSC = California Supreme Court; USSC = U.S. Supreme Court. The status of the issue is noted only if it has been directly considered. Each enumerated issue represents a point upon which an instructional request or objection may be made. CAVEAT 1: Rejection by California Supreme Court (“CSC”) doesn’t preclude preserving 8th/14th Amendment issues for federal review. CAVEAT 2: Rejection of sua sponte duty to instruct doesn’t preclude instructing on request.
    • “F” refers to the FORECITE entry under the cited number.
  • 8.81.3. Multiple Murder [§DP-12]
    • 1. Duress should be available as a defense to multiple murder. (See FORECITE F 8.81.2 n1 and F 8.81.3 n1.)
  • 8.81.4. Murder by Bomb or Explosive [§DP-13]
    • 1. The term “explosive” should be defined. (See FORECITE F 8.81.4a.)
  • 8.81.8. Murder of Peace Officer [§DP-14]
    • 1. Proper warrant service as factual issue for the jury. (See FORECITE F 8.81.8a.)
  • 8.81.10. Murder of Witness a Juvenile Proceeding [§DP-15]
    • 1. “Juvenile proceeding” must be defined. (See FORECITE F 8.81.10a.)
  • 8.81.11. Murder of Judge/Prosecutor [§DP-16]
    • 1. Intent to kill required. (See FORECITE F 8.81.1a.)
  • 8.81.15. Lying in Wait [§DP-17]
    • 1. As defined in California, lying in wait violates 8th Amendment for failing to provide a meaningful distinction between lying in wait and “ordinary” premeditated murder. (FORECITE F 8.81.15a.) CSC: Rejected. (People v. Edwards (91) 54 C3d 787, 822-826, 1 CR2d 696.)
  • 8.81.17. Felony Murder [§DP-18]
    • 1. Arson Murder: Green instruction required on request. (FORECITE F 8.81.17a.)
    • 2. Special instruction on application of Ireland merger doctrine where burglary committed for purposes of assault. (FORECITE F 8.81.17b.)
    • 3. Constitutional challenge to Prop 115 rule that “major” accomplice need not intend to kill. (F 8.80.1 n2; see also FORECITE F 8.80.1d.)
    • 4. “Still-in-progress” instruction should be limited to robbery. (FORECITE F 8.81.17c.) (See also (People v. Poggi (88) 45 C3d 306, 327, 246 CR 886: “engaged in” means no cognizable interruption.)
    • 5. When there is an issue as to whether one accused with felony murder reached a position of temporary safety that term should be defined. (FORECITE F 8.21.1c.)
    • 6. “Merely incidental” language of 8.81.17 violates 8th Amendment. CSC: Rejected. (People v. Raley (92) 2 C4th 870, 903, 8 CR 2d 678.)
    • 7. Intent to kill required for felony occurring after Carlos but before Anderson. CSC: Yes. (People v. Duncan (91) 53 C3d 955, 970-971 [281 CR 273].)
    • 8. CALJIC 8.81.17 improperly allows felony murder special as to accomplice without finding of intent to kill. CSC: Rejected. (People v. Pinholster (92) 1 C4th 865, 954-955, 4 CR2d 765.)
    • 9. Court has sua sponte duty to instruct upon elements of and defenses to the underlying felony if unchanged. CSC: Yes. (People v. Mickey (91) 54 C3d 612, 675-677, 286 CR 801.)
  • 8.81.18. Torture Special Circumstance [§DP-19]
    • 1. The term “sadistic purpose” as used in CALJIC 8.81.18 is unconstitutionally vague under Maynard v. Cartwright (88) 486 U.S. 356, 361, 100 L.Ed.2d 372, 108 SCt. 1853 and Godfrey v. Georgia (80) 446 U.S. 420, 428, 64 L.Ed.2d 398, 100 SCt. 1759. CSC: Rejected. (People v. Raley (92) 2 C4th 870, 897-901, 8 CR 2d 678.)
    • 2. CALJIC 8.81.18 should be modified to include the mens rea from PC 189. (FORECITE F 8.81.18a.)
  • 8.82. Prior Murder [§DP-20]
    • 1. Intent to kill required per Prop 115. (FORECITE F 8.82a.)
  • 8.83.2a. Jury Not to Consider Penalty [§DP-21]
    • 1. CALJIC 8.83.2 should be modified in cases where a prosecution witness had charges pending or was on probation. (FORECITE F 17.42a.)
  • 8.83.3. Accomplice Corroboration [§DP-22]
    • 1. Accomplice corroboration rule applies to out-of-court statements. CSC: Yes. (People v. Andrews (89) 49 C3d 200, 215, fn. 11, 260 CR 583; see also FORECITE F 8.83.3a.)
  • 8.83.4. Proof of Corpus [§DP-23]
    • 1. Amendment of § 190.4 eliminating requirement that corpus of felony based special circumstance be proved independent of the defendant’s admissions should not be applied retroactively. (FORECITE F 8.83.4.) [NOTE: CJ 8.83.4 has been deleted from the 6th Edition (1997). See FORECITE F 8.83.4a for the 5th Edition instruction.]
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