SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 735 Special Circumstances: Discharge From Vehicle, PC 190.2(a)(21)
TABLE OF CONTENTS
F 735.1 Titles And Identification Of Parties
F 735.1 Inst 1 Special Circumstances: Discharge From Vehicle—Title
F 735.1 Inst 2 Identification Of Prosecution And Defendant
F 735.2 Instructions
F 735.2 Inst 1 Special Circumstance: Discharge From Vehicle—Enumeration Of Elements; Specification Of Alleged Victim
F 735.2 Inst 2 Linking Special Circumstance To the Murder To Which It Relates
F 735 NOTES
F 735 Note 1 Special Circumstances: Discharge From Vehicle—CALCRIM Cross References And Research Notes
F 735 Note 2 Drive-By Murder Special Circumstance: Constitutional Challenge
Return to Series 700 Table of Contents.
F 735.1 Titles And Identification Of Parties
F 735.1 Inst 1 Special Circumstances: Discharge From Vehicle—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 735.1 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 735.2 Instructions
F 735.2 Inst 1 Special Circumstance: Discharge From Vehicle—Enumeration Of Elements; Specification Of Alleged Victim
*Replace Elements with the following [added language is underlined; deleted language is stricken]:
1. (The defendant/________ <insert name or description of principal if not defendant>) shot a firearm from a motor vehicle, killing ________ <insert name of decedent>;
2. The shooter (The defendant/ ________ <insert name or description of principal if not defendant>) intentionally shot at a person ________ <insert name of decedent intended target> who was outside the vehicle;
AND
3. At the time of the shooting, the defendant intended to kill ________ <insert name of intended target>.
4. The shot[s] fired by the defendant/________ <insert name or description of principal if not defendant> killed ________ <insert name of decedent>;
5. At the time of the shooting the defendant intended to kill ____________ <name of person defendant is alleged to have intended to kill>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Separate Enumeration Of Elements—CALCRIM 735 improperly combines four discrete elements into Elements 1 and 2. (See FORECITE F 3500.2 Inst 1.)
Specification Of Alleged Victim—CC 735 Element 2 improperly states the element in terms of shooting at “a person” rather than a named victim. (See FORECITE F 820.2 Inst 1.) Similarly, Element 3 improperly fails to specify whom the defendant intended to kill.
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 735.2 Inst 2 Linking Special Circumstance To the Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 735 Notes
F 735 Note 1 Special Circumstances: Discharge From Vehicle—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 735 Note 2 Drive-By Murder Special Circumstance: Constitutional Challenge
People v. Rodriguez (1998) 66 CA4th 157, a non-capital LWOP case, rejected several constitutional challenges to PC 190.2(a)(21), the drive-by murder special circumstance. The court rejected an argument that the statute is facially unconstitutional as “overbroad” in reliance on the general rule that a statute must be incapable of constitutional application in any circumstance in order to be found facially invalid. However, because Rodriguez was a non-capital case, it does not resolve the more compelling 8th Amendment argument applicable to capital cases which requires special circumstances to rationally narrow the class of death-eligible individuals. If the drive-by murder special is over inclusive, then an 8th Amendment challenge could be mounted against it in a capital case, even if it does encompass circumstances which are constitutionally permissible. (See U.S. v. Cheely (9th Cir. 1994) 36 F3d 1439, 1444 [“The constitutional defect in [these 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.” ].)
People v. Rodriguez (1998) 66 CA4th 157 also rejected a substantive due process challenge to PC 190.2(a)(21), the drive-by murder special circumstance. Specifically, the court rejected arguments that the special circumstance, by proscribing any killing resulting from the shooting out of a vehicle, was not reasonably related to the intended deterrence and failed to require that the vehicle be an instrumentality of the crime. [See Brief Bank # B-771 for briefing on this issue.]
CALJIC NOTE: See FORECITE F 8.81.21 n1.
