SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 723 Special Circumstances: Murder To Prevent Arrest Or Complete Escape, PC 190.2(a)(5)
TABLE OF CONTENTS
F 723.1 Titles And Identification Of Parties
F 723.1 Inst 1 Special Circumstances: Murder to Prevent Arrest or Complete Escape—Title
F 723.1 Inst 2 Identification Of Prosecution And Defendant
F 723.2 Instructions
F 723.2 Inst 1 Separation Of Alternative Grounds; Enumeration And Clarification Of Elements
F 723.2 Inst 2 Murder to Prevent Arrest or Complete Escape
F 723.2 Inst 3 Linking Special Circumstance To the Murder To Which It Relates
F 723.2 Inst 4 Special Circumstances—Murder of Peace Officer: Required Specific Intent To Avoid Arrest Or To Escape.
F 723.2 Inst 5 Special Circumstances: Avoidance-Of-Arrest
NOTES
F 723 Note 1 Murder During Escape Does Not Require That Defendant Was Booked
Return to Series 700 Table of Contents.
F 723.1 Titles And Identification Of Parties
F 723.1 Inst 1 Special Circumstances: Murder To Prevent Arrest Or Complete Escape—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 723.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 723.2 Instructions
F 723.2 Inst 1 Separation Of Alternative Grounds; Enumeration And Clarification Of Elements
*Modify CC 723, paragraph 1, 2 and Elements as follows [added language is underlined; deleted language is stricken]:
The defendant is charged with the special circumstance of murder (to prevent arrest/ [or] to escape from custody).
To prove that this special circumstance is true, the People must prove that:
1. [The defendant [comitted] [aided and abetted] the murder was committed [for the purpose of] [with the specific intent to] avoid or prevent a lawful arrest(./;)]
[OR
2.] [The murder was committed while completing or attempting to complete an escape from lawful custody.]
2. Such arrest was lawful;
3. Such arrest was imminent or appeared to be imminent.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Separate Enumeration—CALCRIM 723 improperly combines the separate elements of the fact of an arrest and the lawfulness of that arrest in a single element. (See FORECITE F 3500.2 Inst 1.) Furthermore, the requirement that the arrest be imminent is also an element which should be enumerated. (See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 3500.2 Inst 1.) The fact that such element may not always be at issue does not justify its omission from the enumerated elements. (See generally People v. Figueroa (1986) 41 C3d 714; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310].) To assure the jurors properly consider it to be an element it should be enumerated.
Specific Intent—See FORECITE F 723.2 Inst 4; F 8.81.5a.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 723.2 Inst 2 Murder To Prevent Arrest Or Complete Escape
*Modify CC 723, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
The defendant is charged with the special circumstance of murder (to prevent arrest/ [or] to escape from custody).
To prove that this special circumstance is true, the People must prove that:
1. [The murder was committed to avoid or prevent a lawful arrest(./;)]
[OR
2.] [ 1. The murder was committed while the defendant was either:
A. Attempting to escape from custody
OR
B. Completing or attempting to complete an escape from lawful custody.]
2. The custody referred to in Element 1 above was lawful;
3. The defendant had not reached a place of temporary safety before the murder was committed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Tailoring To Facts: Prosecution’s Theory—Murder while attempting to escape or completing an escape are different theories which should be separately enumerated. (See FORECITE F 400.2 Inst 1.)
Separate Enumeration Of Elements—The fact of the escape and the lawfulness of the custody are discrete elements which should be separately enumerated. (See generally FORECITE F 3500.2 Inst 1.)
Temporary Safety: Modification Of Burden Shifting LanguageC The language of CC 723 improperly shifts the burden of proof by implying that the jurors must find that the defendant did reach a place of temporary safety. (See FORECITE F 404.2 Inst 1.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 723.2 Inst 3 Linking Special Circumstance To The Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 723.2 Inst 4 Special Circumstances—Murder of Peace Officer: Required Specific Intent To Avoid Arrest Or To Escape.
*Add to CC 723:
[To find that the murder was committed for the purpose of avoiding or preventing a lawful arrest you must determine beyond a reasonable doubt that the killer had the specific intent to avoid or prevent a lawful arrest.]
[To find that the murder was committed to perfect, or attempt to perfect an escape from lawful custody you must determine beyond a reasonable doubt that the killer had the specific intent to escape from lawful custody.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
General vs. Specific Intent—The process of determining whether a crime entails general or specific intent should start with an examination of the statutory language. General intent crimes proscribe particular acts. For such crimes, reference is not made to any intent to accomplish some further act or achieve some further consequence. (See People v. Hood (1969) 1 C3d 444, 456; People v. Lopez (1986) 188 CA3d 592, 598.) Where the definition includes the defendant’s intent to accomplish a further act or achieve an additional consequence, the crime is one of specific intent. (Hood, 1 C3d at 456-57.)
Hence, because PC 190.2(a)(5) requires that the killing be for the “purpose” of avoiding arrest or to escape, it follows that such specific intent is an element of the special circumstance.
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. Furthermore, such an error also violates the 8th Amendment because it undermines the reliability of the special circumstance verdict and the resultant death sentence.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.81.5a.
F 723.2 Inst 5 Special Circumstances: Avoidance-Of-Arrest
*Add to CC 723 after Element 1 [added language is underlined]:
2. The arrest was imminent.
[Renumber Element 2]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Propriety Of Enumerated Element That Arrest Was Imminent—The murder to prevent arrest or perfect escape special circumstance (PC 190.2(a)(5)) predicates death or life without parole eligibility on murder which was committed for the purpose of avoiding or preventing a lawful arrest. (See People v. Coleman (1989) 48 C3d 112, 145-46.) Although it has been held that this special circumstance may not be upheld if the evidence did not show that the arrest was imminent (People v. Coleman, supra; People v. Bigelow (1984) 37 C3d 731, 751), imminence of the arrest is not an element of the special circumstance upon which the jury must be instructed in every case. (See People v. Cummings (1993) 4 C4th 1233, 1300.) However, if there is an evidentiary question as to whether the arrest was imminent, supplemental instruction on this issue may be appropriate. (See Cummings, 4 C4th at 1301; see also People v. Vorise (1999) 72 CA4th 312.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.81.5b.
F 723 NOTES
F 723 Note 1 Murder During Escape Does Not Require That Defendant Was Booked
See People v. Cruz (2009) 44 C4th 636, 666-67.