SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 730 NOTES
TABLE OF CONTENTS
F 730 Note 1 Special Circumstances: Murder in Commission of Felony—CALCRIM Cross References And Research Notes
F 730 Note 2 Felony Murder Special: Green Applies To Arson (PC 190.2(a)(17))
F 730 Note 3 Felony Murder Special: Whether Green Instruction Must Be Given Sua Sponte (PC 190.2(a)(17))
F 730 Note 4 Felony Murder Special: Sua Sponte Duty To Instruct Upon Defenses, Etc. When Underlying Felony Is Not Substantively Charged (PC 190.2(a)(17))
F 730 Note 5 Felony Murder Special: Intent To Kill For Aider And Abettor (PC 190.2(a)(17))
F 730 Note 6 Felony Murder Special: When Intent To Kill Required Per Carlos (PC 190.2(a)(17))
F 730 Note 7 Felony Murder Special: “Yoshiato Window” (PC 190.2(a)(17))
F 730 Note 8 Felony Murder Special: All Felony Murders Subject To Special Circumstance Liability (PC 190.2(a)(17))
F 730 Note 9 Overbreadth Constitutional Challenge To Felony Murder Special Circumstance (PC 190.2(a)(17))
F 730 Note 10 Felony Murder Special: No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged (PC 190.2(a)(17))
F 730 Note 11 Duplication Of Elements In Felony Murder Special Circumstance As 8th Amendment Violation (PC 190.2(a)(17))
F 730 Note 12 Collateral Estoppel Precludes Re-Litigation Of Underlying Felony And Felony Murder Convictions (PC 190.2(a)(17))
F 730 Note 13 Felony Murder Special: Specific Intent To Commit Underlying Offense Not Required
F 730 Note 14 Felony Murder Special Circumstance: Robbery Or Burglary Need Not Be The Primary Intent
F 730 Note 15 Felony Murder Special: “Merely Incidental” Not Ambiguous (PC 190.2(a)(17))
Return to Series 700 Table of Contents.
F 730 Note 1 Special Circumstances: Murder in Commission of Felony—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 701 [Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990]
CALCRIM 702 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990C Other Than Felony Murder]
CALCRIM 703 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990C Felony Murder]
CALCRIM 704 [Special Circumstances: Circumstantial Evidence—Sufficiency]
CALCRIM 705 [Special Circumstances: Circumstantial Evidence—Intent or Mental State]
CALCRIM 706 [Special Circumstances: Jury May Not Consider Punishment]
CALCRIM 707 [Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute Whether Witness Is Accomplice]
CALCRIM 708 [Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute Whether Witness Is Accomplice]
Research Notes:
See CLARAWEB Forum, Homicide— Series 500-700.
F 730 Note 2 Felony Murder Special: Green Applies To Arson (PC 190.2(a)(17))
Where the evidence is subject to the construction that the defendant set fire to a building in order to kill the occupants, it is error to refuse to instruct the jury upon the Green rule per paragraph 2 of CJ 8.81.17. (People v. Clark (1990) 50 C3d 583, 608-09.)
CALJIC NOTE: See FORECITE F 8.81.17 n3.
F 730 Note 3 Felony Murder Special: Whether Green Instruction Must Be Given Sua Sponte (PC 190.2(a)(17))
In People v. Pensinger (1991) 52 C3d 1210, 1255-56, the Supreme Court held that the trial court has no sua sponte duty to instruct the jury that there can be no felony-murder special circumstance if the felony was merely incidental to the murder. The court concluded that the Green doctrine cannot be called a general principle of law closely and openly connected with the facts before the court giving rise to a sua sponte duty to instruct.
Williams v. Calderon (9th Cir. 1995) 52 F3d 1465, 1476, held that the independent felonious purpose element is “not mere state law nicety” but is an essential element of the charge without which the PC 190.2(a)(17) special circumstance “would run afoul of the requirements of [the 8th Amendment].”
CALJIC NOTE: See FORECITE F 8.81.17 n4.
F 730 Note 4 Felony Murder Special: Sua Sponte Duty To Instruct Upon Defenses, Etc. When Underlying Felony Is Not Substantively Charged (PC 190.2(a)(17))
When a defendant is charged with a felony-murder special circumstance but not the substantive felony, the court has a sua sponte duty to instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.” (People v. Mickey (1991) 54 C3d 612, 675-77.)
CALJIC NOTE: See FORECITE F 8.81.17 n5.
F 730 Note 5 Felony Murder Special: Intent To Kill For Aider And Abettor (PC 190.2(a)(17))
The California Supreme Court has rejected the argument that CJ 8.81.17 allows the jury to find the special circumstance as to an aider and abettor without finding an intent to kill. (People v. Pinholster (1992) 1 C4th 865, 954-55.) However, the USSC has not yet addressed this issue and, therefore, it should be preserved for federal court. Moreover, upon request, the defendant should have the right to clarify the instruction to assure the jury understands that an aider and abettor must intend to kill. (See also, People v. Raley (1992) 2 C4th 870, 898.)
CALJIC NOTE: See FORECITE F 8.81.17 n6.
F 730 Note 6 Felony Murder Special: When Intent To Kill Required Per Carlos (PC 190.2(a)(17))
When a felony-murder special circumstance is alleged to have occurred after the decision in Carlos and before Anderson, Carlos governs and the jury must be instructed on the need to find intent to kill. (People v. Duncan (1991) 53 C3d 955, 973, n4; see also People v. Ashmus (1991) 54 C3d 932, 981.)
CALJIC NOTE: See FORECITE F 8.81.17 n7.
F 730 Note 7 Felony Murder Special: “Yoshiato Window” (PC 190.2(a)(17))
On June 6, 1990, Proposition 115 added PC 190.2(d) allowing felony-murder special circumstances liability (PC 190.2(a)(17)) for a “major participant” who acts with “reckless indifference” even if the defendant neither intended to kill nor was the actual killer. (See PC 190.2(c).) Obviously, this substantial expansion of special circumstance liability cannot be applied to crimes committed before June 6, 1990. (Tapia v. Superior Court (1991) 53 C3d 282, 297-99.)
Moreover, 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 (1992) 2 C4th 978 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 (1991) 227 CA3d 692, 698.)
2) Ex Post Facto / Due Process principle which preclude the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (1988) 205 CA3d 514, 518.)
3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (1980) 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.)
However, in People v. Superior Court (Clark) (1994) 22 CA4th 1541, 1550-51, 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 Yoshiato opinion was never final and therefore never had any precedential value.
CALJIC NOTE: See FORECITE F 8.81.17 n10.
F 730 Note 8 Felony Murder Special: All Felony Murders Subject To Special Circumstance Liability (PC 190.2(a)(17))
Note that, taken together, the Proposition 115 Amendments to PC 189 and PC 190.2(a)(17) make all types of first degree felony murders subject to special circumstance allegations.
CALJIC NOTE: See FORECITE F 8.81.17 n11.
F 730 Note 9 Overbreadth Constitutional Challenge To Felony-Murder Special Circumstance (PC 190.2(a)(17))
In U.S. v. Cheely (9th Cir. 1994) 36 F3d 1439, the court held that the 8th Amendment precludes the imposition of the death penalty for a killing resulting from the use of a mail bomb. The court held that the statute was disproportionately severe and insufficiently narrow to preclude the prospect of “wanton” and “freakish” death sentencing. “The constitutional defect in [the statutes] is that they create the potential for impermissibly disparate and irrational sentencing because they encompass a broad class of death-eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them. [Fn omitted.]” (Cheely, 36 F3d at 1444.)
The court illustrated its point by comparing two hypothetical scenarios to show that the death penalty could be imposed under the statute in a disparate manner:
Scenario #1: “One person mails another an explosive or inflammable substance in furtherance of a joint plan to blow a crater in the local college’s football field, to protest the ascendancy of athletics over academics. If for any reason the substance accidentally explodes while in route, [fn omitted], and a person dies as a result, both conspirators could be sentenced to death.”
Scenario #2: “A paid assassin successfully used a mail bomb to murder a NAACP leader.” Because, under the statute, one jury could sentence the football field bombers to death, while another could reject the death penalty as to the paid assassin, the court concluded that the mail bomb statute did not adequately narrow the class of death-eligible persons and did not foreclose the prospect of “wanton or freakish” imposition of the death penalty. “The government argues that these sections genuinely narrow the class of death-eligible persons because they authorize the death penalty only for those relatively few persons who use mail bombs. [Fn omitted.] This argument reveals a fundamental misunderstanding of the case law. Narrowing is not an end in itself, and not just any narrowing will suffice. The narrowing must be such that it forecloses the prospect of the cruel and unusual punishment from ‘wanton or freakish’ imposition of the death penalty. When juries are presented with a broad class, composed of persons of many different levels of culpability, and are allowed to decide who among them deserves death, the possibility of aberrational decisions as to life or death is too great. [Emphasis added.] The statute before us is unconstitutional because it utterly fails to foreclose this prospect.” In other words, the fact that the statute reduces the number of death-eligible persons does not necessarily establish that it is sufficiently narrow to preclude “wanton or freakish” imposition of the death penalty. Otherwise, “[a] state could … save its capital sentencing scheme simply by dividing the homicide section of its criminal code to provide, for example, murder by gun, murder by knife, by burning … etc.” (Cheely, 36 F3d at 1445, n 14.)
This analysis applies with even greater force to the felony-murder special circumstance in California. Although the felony-murder special circumstance does limit the number of persons to which the death penalty is applicable, it encompasses so “many levels of culpability” that the danger of “wanton and freakish” imposition of the death penalty is even greater than was present in Cheely. For example, the following three scenarios demonstrate the disparity of conduct encompassed by the felony murder rule:
Scenario #1: The defendant enters a locked car (PC 459) in a deserted parking lot. Unbeknownst to the defendant, another person is nearby and, when confronted by that person, the defendant flees. Several other persons form a “posse” which hunts the defendant down. The posse begins attacking the defendant with a baseball bat and the defendant, with his back literally to the wall, takes out a knife and kills his attackers.
Scenario #2: The defendant carefully seeks to avoid any risk of harm to others by planning a burglary of an isolated commercial building at a time when no one is present. As he is driving away safely and at a normal speed after the burglary, the defendant unavoidably runs over a pedestrian who darted out between two parked cars in an unlighted area.
Scenario #3: During the robbery of a store, the defendant takes the victim into a back room and shoots him point blank in the back of the head execution style.
In each of the above scenarios, the defendant is death eligible as a result of the felony-murder special circumstance. Therefore, the defendant who acted in self-defense (which is not a defense to felony murder; People v. Loustaunau (1986) 181 CA3d 163, 170) and the defendant who inadvertently ran over a pedestrian after the burglary (felony murder applies to killings during the escape from a burglary; People v. Fuller (1978) 86 CA3d 618, 623-24) could be sentenced to death while the cold-blooded, execution-style murderer could be given life without parole. These scenarios graphically illustrate how the “levels of culpability” are even greater under the California felony murder rule than under the statutes struck down by the Cheely court.
Moreover, there need not even be a causal relationship between the felony and the homicide. (See People v. Pock (1993) 19 CA4th 1263, 1276.)
With the advent of People v. Davis (1994) 7 C4th 797, the reach of the felony murder rule has been extended even more. Now, a defendant may be subjected to fetus murder, and hence, special circumstance felony murder, for the unintentional killing of a 9-week old fetus which the defendant does not even know exists.
Accordingly, the California felony-murder special circumstance (PC 190.2(a)(17)) should be held unconstitutional under the 8th Amendment of the federal constitution.
CALJIC NOTE: See FORECITE F 8.81.17 n12.
F 730 Note 10 Felony Murder Special: No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged (PC 190.2(a)(17))
[See FORECITE F 8.21 n10.]
F 730 Note 11 Duplication Of Elements In Felony-Murder Special Circumstance As 8th Amendment Violation (PC 190.2(a)(17))
In State v. Bigbee (Tenn. Sup. Ct. 94) 885 SW2d 797, the Tennessee Supreme Court held that the state is forbidden by the Tennessee and federal constitutional prohibitions against cruel and unusual punishment to use felony murder as an aggravating (special) circumstance on the ground that felony murder duplicates the crime itself and does not perform the constitutionally mandated task of narrowing the class of death-eligible defendants. (See also, State v. Middlebrooks (1992) 840 SW2d 317.) The lead opinion concluded that the added requirements of “recklessness” and “substantial participation in the underlying felony” do not provide the required narrowing.
In Tennessee v. Middlebrooks (1992) 840 SW2d 317, the court made the following observations: ” … the felony murder narrowing device fails to meet both the quantitative and qualitative requirements for a narrowing device. It provides no meaningful narrowing and, to the extent that narrowing does exist, it does not serve to identify the defendants most deserving of death. In these states, felony murderers are treated essentially the same as they were pre-Furman … the simple fact of the accompanying felony makes the defendant death-eligible [and] the jury can exercise its unfettered discretion to determine whether defendant is to live or die. [Para.] Commentators have always criticized the felony murder rule for its bootstrapping effect. [Citation.] It vaults an offense into the class of murders without the malice finding usually required, and then, still without any culpability finding, elevates what otherwise might not be a murder to first-degree murder. [Citation.] In addition, … a third level of bootstrapping arises as the felony-murder defendant is moved up into the supposedly restricted class of defendants eligible for death. [Citation.] [Para.] The perverse result of the felony murder narrowing device is even more troubling because the usual class of first-degree murderers is made up largely of two groups of defendants—felony murderers and pre-meditated and deliberated murderers. The only defendants who are eliminated by the felony murder narrowing device are those who kill with pre-meditation and deliberation— i.e., in cold blood—but not during the course of a felony. A simple felony murder accompanied by any other aggravating factor is not worse than a simple, pre-meditated, and deliberate murder. If anything, the latter which by definition involves a killing in cold blood, involves more culpability.” (Middlebrooks, 840 SW2d at 344.)
CALJIC NOTE: See FORECITE F 8.81.17 n14.
F 730 Note 12 Collateral Estoppel Precludes Re-Litigation Of Underlying Felony And Felony-Murder Convictions (PC 190.2(a)(17))
See FORECITE F 4.007 n10.
F 730 Note 13 Felony Murder Special: Specific Intent To Commit Underlying Offense Not Required
In People v. Davis (1995) 10 C4th 463, 519-20, the Supreme Court held that specific intent to commit the underlying felony is not an element of the felony-murder special circumstance under PC 190.2(a)(17). This rule is inconsistent with the requirement that specific intent to commit the underlying felony be proven in felony murder cases pursuant to PC 189. (See People v. Berryman (1995) 6 C4th 1048, 1079.)
CALJIC NOTE: See FORECITE F 8.81.17 n16.
F 730 Note 14 Felony-Murder Special Circumstance: Robbery Or Burglary Need Not Be The Primary Intent
People v. Michaels (2002) 28 C4th 486, 529 held that burglary—murder and robbery—murder special circumstances were proper despite the fact that defendant’s primary purpose in committing the murder of his girlfriend’s mother was to protect his girlfriend from her abuse, and taking property from the victim was his “secondary” purpose.
CALJIC NOTE: See FORECITE F 8.81.17 n18.
F 730 Note 15 Felony Murder Special: “Merely Incidental” Not Ambiguous (PC 190.2(a)(17))
The “merely incidental” language of CJ 8.81.17 is not erroneously ambiguous. (People v. Raley (1992) 2 C4th 870, 903.)
CALJIC NOTE: See FORECITE F 8.81.17 n2.