Special Circumstances in California Murder Cases

Penal Code 190.2 PC is the California statute that explains the situations where a person can be liable for murder with special circumstances. These are aggravated forms of murder where the defendant, if convicted, can be sentenced to life in prison without the possibility of parole, or the death penalty.

In 1972, the Supreme Court of the United States ruled that it was unconstitutional for juries to impose the death penalty on a “random handful” of some defendants and not others…with no logical guidelines to determine who would be sentenced to death and who wouldn’t. 1 The Court thought that this violated the U.S. Constitution’s rule against “cruel and unusual punishment” 2 …in the same way that “being struck by lightning is cruel and unusual.” 3 The randomness of it is what made it cruel.

California’s law on special circumstances murder (also known as capital murder) exists partly to address this concern. Because of this law, juries can’t impose the California death penalty on someone found guilty of murder just because they feel like it or take a personal dislike to the defendant.

Instead, a murder defendant can only be sentenced to death (capital punishment) if they are convicted of first-degree murder, and if the murder involved a so-called “special circumstance.” 4 The special circumstances that can elevate a murder into special circumstances murder are listed in Penal Code 190.2 PC. 5

The list of special circumstances has changed over the years. Some of the items were added as a result of California voter initiatives, in which California voters rather than the California legislature voted to include them. 6

Partly because of this, some of the items on the list don’t make as much sense as others. On the one hand, the list includes things like the murder of a police officer and murder involving torture…which many people would probably agree deserve harsher punishment. 7 On the other hand, it also includes much less obvious things like murder by means of a drive-by shooting. 8

Even if a jury finds that one of the special circumstances is true, that doesn’t mean the defendant automatically gets the death penalty. But it DOES mean that they will be sentenced either to death OR to life in prison without the possibility of parole. 9 Note, however, that a temporary moratorium on all executions in California has been put into effect by Governor Gavin Newsom.

In this article, our experienced California criminal defense attorneys explain the law by addressing:

• 1. What is special circumstances murder?
  • 1.1 Jury determination required
  • 1.2. Intent to kill not always required
  • 1.3. Aiding and abetting
  • 2.1. Murder carried out for financial gain
  • 2.2. Prior murder conviction
  • 2.3. Multiple murder convictions
  • 2.4. Murder by bomb or destructive device
  • 2.5. Preventing arrest or escaping
  • 2.6. Murder of a police officer, federal agent, or firefighter
  • 2.7. Murder of a witness
  • 2.8. Murder of a prosecutor, judge, government official, or juror
  • 2.9. Lying in wait
  • 2.10. Murder because of race, religion, or nationality
  • 2.11. Murder in commission of a felony
  • 2.12. Murder involving torture
  • 2.13. Murder by poison
  • 2.14. Drive-by shootings
  • 2.15. Murder by a street gang member

  If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

  1. What is special circumstances murder?

  California special circumstances murder (which is sometimes called capital murder) is a particular kind of first-degree murder. 11 The main difference between special circumstances murder and ordinary California murder laws (Penal Code 187) is in the potential penalties. Whereas ordinary first-degree murder is punishable by twenty-five (25) years to life in California state prison, 12 the penalty for special circumstances murder is either

  • life in prison without the possibility of parole, OR
  • the death penalty.

  Note that Los Angeles County prosecutors are no longer seeking the death penalty in any of its cases. 13

  1.1. Jury determination required

  Because the penalties for special circumstances murder are so harsh, the law makes it as difficult to prove that one of the special circumstances applies as it is to prove that someone committed murder in the first place. The prosecutor has to prove beyond a reasonable doubt that a special circumstance applies. 14

  Also, a jury has to determine if any special circumstance applies. A defendant has a right to a jury trial on special circumstances even if the underlying question of his/her guilt was not decided by a jury (for example, because s/he entered a guilty plea). 15 And the jury has to agree unanimously that the special circumstance applies. 16

  1.2. Intent to kill not always required

  You can be convicted of murder even if you did not intend to kill the victim – for example, if you accidentally killed someone while committing a dangerous felony (the “felony-murder” rule). 17

  With special circumstances murder / capital murder, intent to kill is required if the conviction is based on some kinds of special circumstances. 18 But for other kinds of special circumstances, you can be convicted — and sentenced to death or life in prison without parole — even if you didn’t specifically intend to kill someone! 19

  1.3. Aiding and abetting

  You can also be convicted of special circumstances murder (capital murder) in California even if you didn’t personally kill someone. The law makes it possible for people to receive the death penalty or life in prison under Penal Code 190.2 PC for aiding and abetting a murder, as long as one of the special circumstances applies. 20

  However, for a person to be convicted of special circumstances murder for acting as an accomplice to a murder, the jury in most cases DOES have to determine that s/he intended for someone to be killed. 21

  The only exception to this is if the murder took place in connection with the commission of certain felonies. In these cases, an aider or abetter can be convicted even without intent to kill, as long as s/he was played a major role in the felony and acted with “reckless indifference” to human life. 22

  2. What types of homicide qualify for special circumstances?

  There is a long list of special circumstances that can turn an ordinary murder into a capital murder case, for which the penalty is life in prison without parole or the death penalty (the most severe punishment the state can impose). Such circumstances are:

  2.1. Murder carried out for financial gain

  Murder carried out in order to obtain some kind of financial benefit is special circumstances murder. 23

  For this special circumstance to apply, the following all have to be true:

  1. The murder was intentional;
  2. The murder was carried out for financial gain; AND
  3. If the murder was a felony-murder where the felony was robbery, the defendant has to have expected that the financial gain was going to result from the death of the defendant. 24 (Otherwise, every robbery-murder would also be a special circumstances murder.) 25

  All sorts of things can qualify as “financial gain” for purposes of turning murder into capital murder. For example:

  Example: Peter shoots and kills his ex-wife because he doesn’t want to have to pay child support. Avoiding these payments is a form of financial gain. Due to these actions of the accused, he is guilty of special circumstances murder. 26

  Example: Darron is a drug dealer in a small town. When another drug dealer begins to do business in the town, Darron participates in his killing. This is a special circumstances murder for financial gain, because Darron’s goal was to eliminate a business competitor. 27

  Also, financial gain doesn’t have to be the defendant’s only motive for murder in order for the special circumstance to apply.

  Example: Kurt kills his girlfriend’s mother, both because she has been abusing his girlfriend . . . AND because he expects his girlfriend to share the proceeds of her mother’s life insurance policy with him. He can still be found guilty of special circumstances murder even though financial gain was only one of his two motives. 28

  2.2. Prior murder conviction

  A first-degree murder conviction becomes special circumstances murder if the defendant has previously been convicted of first- or second-degree murder, in California or elsewhere. 29

  A defendant can be convicted of capital murder based on this special circumstance even if s/he did not intend to kill the victim. 30

  When this special circumstance is charged, the defendant’s trial must be split up into two phases. First, the jury will determine whether s/he is guilty of first-degree murder on the current charges. Then, in a separate trial, the jury will determine whether s/he has a prior murder conviction. 31 The second jury may not consider evidence from the first trial in the second trial. 32

  2.3. Multiple murder convictions

  A defendant may be convicted of special circumstances murder / capital murder if s/he has been found guilty of other first- or second-degree murders at the same trial. 33 To be clear, at least one conviction must be for first-degree murder before capital murder penalties can apply. 34

  Intent to kill is not required for special circumstances murder based on multiple murder convictions, unless the defendant was only an accomplice to murder. 35

  Example: William stabs his ex-wife to death when she is 8 months pregnant. In doing so, he also kills the unborn fetus. It’s not clear that he intended to kill the fetus as well as his wife. But he can still be convicted of special circumstances murder, and sentenced to death or life in prison without parole, based on multiple murders. 36

  2.4. Murder by bomb or destructive device

  Another factor that can elevate murder charges to special circumstances murder is if the killing was carried out by means of a bomb or other explosive or destructive device. 37

  For this special circumstance to apply, the defendant needs to have either 1) planted or hidden the device, 2) had the device mailed or delivered (or attempted to mail or deliver it), or 3) thrown the device. 38

  Intent to kill is not required for this special circumstance either. However, the defendant can only be sentenced to death or life without parole if s/he knew, or reasonably should have known, that his/her actions would create a great risk of death. 39

  2.5. Preventing arrest or escaping

  You can also be convicted of California special circumstances murder (capital murder) if you commit a first-degree murder while either:

  1. Trying to avoid or prevent a lawful arrest, or
  2. Escaping or trying to escape from lawful custody (like prison or a juvenile detention center). 40

  If this special circumstance is based on the theory that the defendant was trying to avoid arrest, it only applies if the arrest was either already in process or was “imminent”-meaning, it was reasonably likely that someone was going to be arrested pretty soon. 41

  Example: Ray is stopped by a police officer while driving a stolen car. When the officer asks for ID, Ray shoots and kills him. Ray may be guilty of special circumstances murder for trying to avoid arrest even though the officer hadn’t actually threatened to arrest him…because it was reasonably likely that the officer would arrest him soon. 42

  Example: Dave decides to make some extra money selling methamphetamine. He has never engaged in any criminal activity before and is extremely nervous.

  One night after making a sale, he goes into a bar carrying a large amount of cash from the deal. Not long after, a police officer in uniform walks in and orders a beer. Dave is frightened that the officer knows about him and intends to arrest him, even though the officer has given no sign that that’s the case. In a terrified frenzy, Dave pulls out a gun and shoots the officer, killing him.

  This is probably not special circumstances murder on resisting-arrest grounds, because the officer was not about to arrest Dave.

  If this special circumstance is based on the theory that the defendant was trying to escape from custody, it applies only while the escape is ongoing. Once a defendant has successfully escaped by reaching a safe place, it won’t be special circumstances murder if s/he then kills someone. 43

  Example: Pete escapes from prison in Canada and crosses the border into the U.S. Two weeks later, he murders someone. This is not special circumstances murder, since his escape was already complete. 44

  2.6. Murder of a police officer, federal agent, or firefighter

  It can also be special circumstances murder if the victim is a police or other peace officer, a federal law enforcement agent, or a firefighter (we’ll refer to them all as “public safety officers”). 45

  For this circumstance to apply and the defendant to be sentenced to life without parole of the death penalty, the following things all have to be proven beyond a reasonable doubt:

  1. The public safety officer was lawfully performing his/her duties;
  2. The defendant intended to kill the public safety officer; AND
  3. Either the defendant knew that the victim was a public safety officer performing his/her duties, OR the victim was killed in retaliation for performing his/her duties. 46

  Example: Lee kills a policeman who is tasing him for no reason at a traffic stop. Because the officer was engaged in police
  misconduct/police brutality, he may not have been lawfully performing his duties; and Lee may not be guilty of special circumstances murder.

  2.7. Murder of a witness

  The murder of a witness to a crime can also be special circumstances murder. 47

  This special circumstance applies only in the following situation:

  1. The defendant intended to kill a witness in a criminal or juvenile justice proceeding;
  2. The witness was not killed during the commission of the crime that s/he witnessed; AND
  3. The defendant intended to kill the witness either to prevent him/her from testifying in a criminal or juvenile justice proceeding, OR in retaliation for his/her past testimony. 48

  Example: Al robs a bank wearing a mask. During the robbery, one teller pulls his mask off and gets a look at his face. Al kills her because she will now be able to identify him.

  Because Al killed a potential witness during the commission of the crime, he did not commit special circumstances murder on this basis.

  The victim doesn’t need to have been an eyewitness to the crime or even a particularly important witness for this special circumstance to apply…any witness will qualify. 49

  Also, the victim doesn’t need to be killed only because s/he is or has been a witness. If the killer has several reasons for murdering the victim, one of which is that s/he may testify or has testified against the killer, then the circumstance still applies.

  Example: Gerry kills his wife both because he is angry at her for leaving him and because he believes she is going to testify against him in connection with certain felony charges. He has committed special circumstances murder even though preventing his wife from testifying was only one of several reasons for the killing. 50

  2.8. Murder of prosecutor, judge, government official, or juror

  Another factor that will elevate first-degree murder to special circumstances murder is if the victim is a prosecutor, a judge, a government official, or a member of a jury. 51

  For this circumstance to apply, there needs to be intent to kill. 52 Also, the defendant needs to have killed the victim either to prevent him/her from performing his/ her official duties as a prosecutor, jury member, etc., OR in retaliation for the past performance of his/her official duties. 53

  2.9. Lying in wait as a special circumstances murder

  Murder can also be special circumstances murder if the defendant killed the victim by “lying in wait.” 54 The defendant needs to have intended to kill the victim for this circumstance to apply. 55

  “Lying in wait” is a strange concept, and courts have had a little trouble figuring out what it means. The official definition of lying in wait is this:

  1. The killer concealed his/her purpose from the victim;
  2. The killer waited and watched for an opportunity to act;
  3. The killer then made a surprise attack on the victim, from a position of advantage; AND
  4. The killer intended to kill the victim by taking them by surprise. 56

  “Basically, lying in wait means taking the victim by surprise, usually by hiding from the victim or else by tricking the victim so that they couldn’t tell an attack was coming.”

  Example: Todd has been hired to kill Clara. He knows she gets home from work late at night. So he waits outside her apartment building for her to return, hiding at the side of the building. When Clara comes home, Todd attacks her while she is looking for her keys and kills her. This is a classic instance of murder by lying in wait.

  Example: Mike and Ricky are angry at their friend Angela because of a romantic dispute. They make plans to kill her. Ricky asks Angela to go shopping with him. On the way to the mall, they stop and pick up Mike, who gets in the back seat of Ricky’s car. Ricky drives the car to a remote part of town, and then Mike strangles Angela with a belt from behind.

  This is also special circumstances murder by lying in wait, even though Mike did not hide from Angela and she was aware of his presence…because Mike and Ricky concealed their purpose from Angela and then surprised her. 58

  2.10. Murder because of race, religion, or nationality

  Special circumstances murder may also be charged when the defendant killed the victim because of the victim’s race, color, religion, nationality, or country of origin. 59

  The killing has to be intentional for this special circumstance to apply. 60 And this special circumstance can apply even if the defendant had more than one reason for killing the victim, as long as the victim’s race, religion, or nationality was a substantial part of the motivation for the killing. 61

  2.11. Murder in the commission of a felony

  A murder committed while the defendant was committing — or making an attempt to commit — a felony can also be special circumstances murder. 62 Only a select list of California felony charges counts for these purposes. The list includes serious felonies like rape, kidnapping, robbery, and arson. 63

  For this special circumstance to apply, the defendant doesn’t need to have personally committed the felony…it’s enough if s/he was attempting to commit it, or was aiding and abetting the felony, or was a member of a conspiracy to commit the felony. 64

  The defendant also does not need to have intended to commit the murder, but s/he DOES need to have intended to participate in committing the felony. 65

  This special circumstance has a lot in common with the the California felony-murder rule. This rule makes a defendant liable for murder if s/he or an accomplice kills another person during the commission of certain felonies, whether the killing is intentional or not. 66 Many felony-murders will also be special circumstances murder.

  Relationship between felony and killing

  The relationship between the felony and the killing is a very tricky issue for this form of capital murder. On the one hand, there does need to be a logical connection between them, and it has to be something more than them occurring at the same time and place. 67

  On the other hand, it’s not special circumstances murder if the felony is only incidental to the murder – that is, if the defendant’s main goal was to kill someone, and s/he committed a felony just to help make the murder happen successfully. 68

  Here’s an example showing what this means:

  Example: Charles shoots and kills his wife in a field. He then removes her purse, clothes, and jewelry, in order to make it harder for the authorities to identify her body.

  Charles committed both murder and robbery, by taking his wife’s possessions. But his main goal was murder, and he committed robbery only to help conceal the murder. So this special circumstance does not apply. 69

  BUT, thanks to a California voter initiative, there are two exceptions to the rule that the felony cannot be incidental to the murder. 70 If the felony is either arson or
  kidnapping, it can be special circumstances murder even if the defendant’s main goal is the killing…and the arson or kidnapping is only done in support of the killing. 71 This exception applies only to murders committed after 3/8/2000. 72

  Example: Charles shoots and kills his wife in a vacant house. Then, to keep the authorities from discovering the body, he sets the house on fire. He is guilty of special circumstances murder because he committed the felony of arson, even though he only committed arson to help facilitate the murder.

  2.12. Murder involving torture

  Murder that involves the infliction of torture — extreme pain and suffering — is also special circumstances murder punishable by death or life without parole. 73

  Here are the factors that need to be proven for this special circumstance to apply:

  1. The defendants need to have intended to kill the victim (accidental or negligent killing won’t count);
  2. The defendant needs to have intended to inflict extreme physical pain on the victim while that person was still alive, for any reason (revenge, extortion, etc.); AND
  3. The defendant needs to have performed an act that would inflict extreme physical pain on the victim. 74

  Interestingly, for torture-murders committed on or after June 6, 1990, it’s not required that the victim actually feel the pain. It is sufficient for the defendant to intend to inflict pain and take some action to inflict pain. 75 But for murders committed before that date, it IS required that the victim actually suffer pain. 76

  2.13. Murder by poison

  Another factor that can elevate murder to special circumstances murder is if the defendant used poison to kill the victim. 77

  For this special circumstance, the defendant does need to have intended to kill the victim. 78

  2.14. Drive-by shootings

  A murder committed by a drive-by shooting (firing a gun out of a motor vehicle) is also special circumstances murder. 79 Intent to kill is required for this circumstance. 80 In addition to cars, motorcycles, buses, and trucks also count as motor vehicles. 81

  Some years back, a defendant tried to argue that this special circumstance is unconstitutional. His argument was that all the other special circumstances apply only to murders in which there was some pre-planning or premeditation, or in which the defendant was involved in other criminal activity besides the murder. 82 In contrast, someone with no prior criminal history could shoot another person out of a vehicle in the heat of the moment, because of a sudden attack of rage. 83

  That argument is pretty convincing. However, a California appeals court held that this special circumstance is constitutional in spite of this. 84

  2.15. Murder by a street gang member

  Just as California’s gang sentencing enhancement laws impose a harsher sentence on a defendant who commits a felony to benefit a gang, 85 the special circumstances murder law provides for a harsher penalty for people who commit murder for the benefit of a criminal street gang. 86

  Here are the elements of this special circumstance:

  1. The defendant intentionally killed the victim;
  2. At the time of the killing, the defendant was an active participant in a criminal street gang (but s/he does not need to have actually been a member);
  3. The defendant knew that members of the gang had engaged in a pattern of criminal gang activity; AND
  4. The defendant killed the victim to further the activities of the gang. 87

  Example: James wants to become a member of the Mara Salvatrucha gang. As part of the initiation process, he is required to kill a member of the rival 18th Street Gang. If he does so, he may be guilty of special circumstances murder, since he will have intentionally killed someone in order to further the activities of Mara Salvatrucha.

  BUT

  Example: Philip is an active member of a local gang. When his girlfriend leaves him for another man, he kills them both. But this is not special circumstances murder…because even though Philip is a gang member, he killed for his own personal reasons, not to support the activities of his gang.

  3. What is heinous, atrocious, or cruel murder?

  The California legislature has also made it a form of special circumstances murder (capital murder) to kill someone in a way that is especially heinous, atrocious, or cruel. 88 But the California Supreme Court has decided that this special circumstance can’t be enforced because it’s unconstitutional 89 …it’s simply too vague and indefinite to give juries the guidance they need in deciding whether someone should be sentenced to the death penalty or life without parole.

  Call us for help…

  

  Call us for help

  If you or loved one is charged with Penal Code 190.2 PC special circumstances murder and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. We offer competitive rates and payment plans during the Covid 19 pandemic.

  For information about Nevada capital murder laws, go to our page about Nevada capital murder laws.

  Legal References:

  1. Furman v. Georgia, (1972) 408 U.S. 238, 310 (Stewart, J., concurring). (“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”)
  2. U.S. Const., amend. VIII. (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)
  3. Furman v. Georgia, (1972) 408 U.S. 238, 310 (Stewart, J., concurring).
  4. Penal Code 190.2 PC – Death penalty or life imprisonment without parole; special circumstances [Special circumstances murder]. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . .”)
  5. Same.
  6. See, e.g., Official Title and Summary: Proposition 195 (passed in 1996); California Proposition 115, the “Crime Victims Justice Reform Act” (passed in 1990).
  7. Penal Code 190.2 PC – Special circumstances murder. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . . (7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties. . . . (18) The murder was intentional and involved the infliction of torture. . . . .”)
  8. Same. (” . . . (21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, “motor vehicle” means any vehicle as defined in Section 415 of the Vehicle Code.”)
  9. Same.
  10. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
  11. Penal Code 190.2 PC – Special circumstances murder.
  12. Penal Code 190 PC — Punishment for violating California’s murder laws.
  13. Penal Code 190.2 PC – Special circumstances murder; LADA Directive 20-11.
  14. Penal Code 190.4 – Special findings on truth of each alleged special circumstance; penalty hearing; application for modification. (“(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.”)
  15. Same. (“If the defendant was convicted by the court sitting without a jury, the trier of fact [on special circumstances murder] shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.”)
  16. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 700 – Special Circumstances: Introduction. (“In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree.”)
  17. People v. Cavitt, (2004) 33 Cal.4th 187, 197. (“The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.”)
  18. See, e.g., Penal Code 190.2(a)(1) PC – Special circumstances murder. (“(1) The murder was intentional and carried out for financial gain.”)
  19. Penal Code 190.2(b) PC – Special circumstances murder. (“(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.”)
  20. Penal Code 190.2(c) PC – Special circumstances murder. (“(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.”)
  21. Same.
  22. Penal Code 190.2(d) PC – Special circumstances murder. (“(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.”)
  23. Penal Code 190.2(a)(1) PC – Special circumstances murder. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: (1) The murder was intentional and carried out for financial gain. . . . .”)
  24. CALCRIM 720 – Special Circumstances: Financial Gain. (“To prove that this special circumstance is true, the People must prove that: 1 The defendant intended to kill; [AND] 2 The killing was carried out for financial gain(;/.) [AND 3 (The defendant/ ) expected the financial gain to result from the death of .]”)
  25. Same, Bench Notes. (“The third element should only be given when the defendant is also charged with a robbery-murder special circumstance. When both are charged, there is a risk that the jury will read the financial gain circumstance broadly, causing it to overlap with the robbery-murder special circumstance. (In such cases, the financial gain special circumstance is subject to ‘a limiting construction under which … [it] applies only when the victim’s death is the consideration for, or an essential prerequisite to, the financial gain sought by the defendant.’)”) (citations omitted)
  26. Loosely based on People v. Edelbacher, (1989) 47 Cal.3d 983, 1025. (“In common usage, the cancellation of a debt or the avoidance of a loss constitutes a financial benefit or gain. The construction urged by defendant would result in an arbitrary and irrational distinction, moreover, since a killing to avoid a loss is as basely motivated and repugnant as a killing for a positive reward or profit. We conclude that a murder for the purpose of avoiding a debt is a murder for financial gain within the meaning of section 190.2, subdivision (a)(1).”)
  27. Loosely based on People v. McLead, (1990) 225 Cal.App.3d 906, 918. (“A murder for purposes of eliminating a business competitor is a murder for financial gain within the meaning of Penal Code section 190.2, subdivision (a)(1).”)
  28. Loosely based on People v. Michaels, (2002) 28 Cal.4th 486, 519. (“Defendant argues that his primary purpose in killing JoAnn was to protect Christina from abuse by JoAnn, but the financial gain special circumstance applies even if the gain is only a secondary purpose.”)
  29. Penal Code 190.2(a)(2) PC – Special circumstances murder. (“(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.”)
  30. People v. Hendricks, (1987) 43 Cal.3d 584, 596. (“Defendant also contends that section 190.2(a)(2) requires a finding of intent to kill. Plainly, the provision does not expressly require such a finding.”)
  31. Penal Code 190.1 PC. (“A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows: (a) The question of the defendant’s guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree. (b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.”)
  32. CALCRIM 750 – Special Circumstances: Prior Murder. (“[In deciding whether the People have proved this special circumstance, consider only the evidence presented in this proceeding. Do not consider your verdict or any evidence from the earlier part of the trial.]”)
  33. Penal Code 190.2(a)(3) PC – Special circumstances murder. (“(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.”)
  34. CALCRIM 721 – Special Circumstances: Multiple Murder Convictions. (“To prove that this special circumstance is true, the People must prove that: 1. The defendant has been convicted of at least one charge of first degree murder in this case; AND 2. The defendant has also been convicted of at least one additional charge of either first or second degree murder in this case.”)
  35. Same, Bench Notes. (“Intent to kill is not required for the actual killer but is required for an accomplice.”)
  36. Loosely based on People v. Dennis, (1998) 17 Cal.4th 468, 516. (“We have never held that the multiple-murder special circumstance requires a jury to find the defendant intended to kill every victim. We also have never held that the intent to kill one victim and the implied malice murder of a second victim is insufficient to establish a multiple-murder special circumstance.”)
  37. Penal Code 190.2(a)(4), (6) PC – Special circumstances murder. (“(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings. . . . (6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.”)
  38. CALCRIM 722 – Special Circumstances: By Means of Destructive Device. (“To prove that this special circumstance is true, the People must prove that: . . . [2. The (bomb[,]/ [or] explosive[,]/ [or] destructive device) was planted, hidden, or concealed in (a/an) (place[,]/ [or] area[,]/ [or] dwelling[,]/ [or] building[,]/ [or] structure);] [2. The defendant (mailed or delivered[,]/ [or] attempted to mail or deliver[,]/ [or] caused to be mailed or delivered) the (bomb[,]/ [or] explosive[,]/ [or] destructive device);] . . . . [For the purpose of this special circumstance, delivery of (a/an) (bomb[,]/ [or] explosive[,]/ [or] destructive device) includes throwing it.]”)
  39. Same. (“3. The defendant knew, or reasonably should have known, that (his/her) actions would create a great risk of death to one or more human beings.”)
  40. Penal Code 190.2(a)(5) PC – Special circumstances murder.(” (5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.”)
  41. People v. Bigelow, (1984) 37 Cal.3d 731, 752. (“We believe the special circumstance of avoiding arrest should be limited to cases in which the arrest is imminent.”)
  42. Loosely based on People v. Cummings, (1993) 4 Cal.4th 1233, 1300. (“Here, by contrast, defendants had been detained by the police officer victim under circumstances which would lead them and any objective observer to believe that an arrest was highly likely. Arrest was or appeared to be ‘imminent.'”)
  43. CALCRIM 723 – Special Circumstances: Murder to Prevent Arrest or Complete Escape. (“[A killing is committed while completing or attempting to complete escape from lawful custody if a person is killed during the escape itself or while the prisoner[s] (is/are) fleeing from the scene. A killing is not committed while completing or attempting to complete escape if the prisoner[s] (has/have) actually reached a temporary place of safety before the killing.]”)
  44. Loosely based on People v. Bigelow, (1984) 37 Cal. 731, 753. (“Under this standard, it is plain that the special circumstance is inapplicable to the murder of John Cherry. When defendant reached Sacramento on July 30, 1980, he had remained at liberty for twelve days after his escape, and traveled across an international boundary to a destination over a thousand miles from his place of confinement. No hot pursuit was underway. Here, if not earlier, he had reached a place of temporary safety, and for the moment made good his escape. The court therefore erred in submitting this special circumstance to the jury, and the verdict finding the murder was committed for the purpose of avoiding arrest or perfecting an escape is not supported by substantial evidence.”)
  45. California Penal Code 190.2(a)(7)-(9) PC – Special circumstances murder. (“(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties. (8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties. (9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.”)
  46. CALCRIM 724 – Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter. (“To prove that this special circumstance is true, the People must prove that: 1. was a (peace officer/federal law enforcement officer/firefighter) [lawfully performing (his/her) duties as a (peace officer/ federal law enforcement officer/firefighter)]; 2. The defendant intended to kill ; AND [3. When was killed, the defendant knew, or reasonably should have known, that was a (peace officer/federal law enforcement officer/ firefighter) who was performing (his/her) duties.] [3. was killed in retaliation for the performance of (his/her) official duties.]”)
  47. Penal Code 190.2(a)(10) PC – Special circumstances murder. (“(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, ‘juvenile proceeding’ means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.”)
  48. Same. See also CALCRIM 725 – Special Circumstances: Murder of Witness. (“To prove that this special circumstance is true, the People must prove that: 1. The defendant intended to kill ; 2. was a witness to a crime; 3. The killing was not committed during the commission [or attempted commission] of the crime to which was a witness; AND 4. The defendant intended that >insert name of decedent> be killed (to prevent (him/her) from testifying in a (criminal/ [or] juvenile) proceeding/ [or] in retaliation for (his/her) testimony in a (criminal/ [or] juvenile) proceeding).”)
  49. People v. Jenkins, (2000) 22 Cal.4th 900, 1018. (“It is no defense to the special circumstance allegation that the victim was not an important witness in the criminal proceeding, so long as one of the defendant’s purposes was to prevent the witness from testifying.”)
  50. Loosely based on People v. Stanley, (1995) 10 Cal.4th 764, 800. (“A defendant who kills his victim in furtherance of more than one purpose is not thereby less culpable than one whose crime has a single purpose. So long as one purpose of a defendant was to prevent the victim from testifying against him, the electorate could reasonably conclude that sentencing him to death would fulfill the dual social purposes of retribution for his deed and deterrence of others. Moreover, a contrary rule would unjustifiably reward defendant for having a criminal ambition greater than one whose killing is motivated only by the desire to eliminate a witness.”)
  51. Penal Code 190.2(a)(11)-(13), (20) PC – Special circumstances murder. (“(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor’s office in this or any other state, or of a federal prosecutor’s office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties. (12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties. (13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties. . . . (20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.”)
  52. Same.
  53. Same.
  54. Penal Code 190.2(a)(15) PC – Special circumstances murder. (“(15) The defendant intentionally killed the victim by means of lying in wait.”)
  55. Same.
  56. CALCRIM 728 – Special Circumstance: Lying in Wait – After March 7, 2000. (“A person commits a murder by means of lying in wait if: 1. He or she concealed his or her purpose from the person killed; 2. He or she waited and watched for an opportunity to act; 3. Then he or she made a surprise attack on the person killed from a position of advantage; AND 4. He or she intended to kill the person by taking the person by surprise.”)
  57. Van Nuys criminal defense attorney John Murray defends against criminal charges throughout Los Angeles and Ventura counties. He has been featured as an expert legal commentator on the Fox News Channel. John works extensively at the Ventura courthouse, the Van Nuys courthouse, and the Michael D. Antonovich Antelope Valley Courthouse in Lancaster, among others.
  58. Loosely based on People v. Morales, (1989) 48 Cal.3d 527, 554-55. (“Contrary to defendant’s position, however, the cases have indicated that physical concealment from, or an actual ambush of, the victim is not a necessary element of the offense of lying-in-wait murder. . . . We conclude that the jury in the present case was properly instructed on the concealment element of the lying-in-wait special circumstance, and that the evidence was sufficient to support a finding of lying-in-wait murder, based on defendant’s watchful waiting, from a position of advantage in the backseat, while the car was driven to a more isolated area, and his sudden surprise attack, from behind and without warning, on victim Winchell.”)
  59. Penal Code 190.2(a)(16) PC – Special circumstances murder. (“(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.”)
  60. Same.
  61. In re M.S., (1995) 10 Cal.4th 698, 719. (“When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the crime.”)
  62. Penal Code 190.2(a)(17) PC – Special circumstances murder. (“(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: (A) Robbery in violation of Section 211 or 212.5 PC. (B) Kidnapping in violation of Section 207, 209, or 209.5. (C) Rape in violation of Section 261. (D) Sodomy in violation of Section 286. (E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288. (F) Oral copulation in violation of Section 287. (G) Burglary in the first or second degree in violation of Section 460. (H) Arson in violation of subdivision (b) of Section 451. (I) Train wrecking in violation of Section 219. (J) Mayhem in violation of Section 203. (K) Rape by instrument in violation of Section 289. (L) Carjacking, as defined in Section 215. (M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.”)
  63. Same.
  64. CALCRIM 730 – Special Circumstances: Murder in Commission of Felony. (“To prove that this special circumstance is true, the People must prove that: 1 The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) . . . .”)
  65. Same. (“2 The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit) ; . . . .”)
  66. Penal Code 189 PC. (“All murder which is . . . committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 287, or 289, . . . is murder of the first degree.”)
  67. CALCRIM 730 – Special Circumstances: Murder in Commission of Felony. (“(4/5) The act causing the death and the [or attempted ] were part of one continuous transaction(;/.) [AND (5/6) There was a logical connection between the act causing the death and the [or attempted ]. The connection between the fatal act and the [or attempted ] must involve more than just their occurrence at the same time and place.]”)
  68. Same. “[In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit independent of the killing. If you find that the defendant only intended to commit murder and the commission of was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.]”)
  69. Loosely based on People v. Green, (1980) 27 Cal.3d 1, 61. (“The Legislature’s goal is not achieved, however, when the defendant’s intent is not to steal but to kill and the robbery is merely incidental to the murder – ‘a second thing to it,’ as the jury foreman here said — because its sole object is to facilitate or conceal the primary crime. In the case at hand, for example, it would not rationally distinguish between murderers to hold that this defendant can be subjected to the death penalty because he took his victim’s clothing for the purpose of burning it later to prevent identification, when another defendant who committed an identical first degree murder could not be subjected to the death penalty if for the same purpose he buried the victim fully clothed — or even if he doused the clothed body with gasoline and burned it at the scene instead.”)
  70. CALCRIM 731 – Special Circumstances: Murder in Commission of a Felony – Kidnapping With Intent to Kill, Bench Notes. (“Subparagraph (M) of Penal Code section 190.2(a)(17) eliminates the application of People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], to intentional murders during the commission of kidnapping or arson of an inhabited structure.”)See also CALCRIM 732 – Special Circumstances: Murder in Commission of a Felony – Arson With Intent to Kill.
  71. Penal Code 190.2(a)(17)(M) PC – Special circumstances murder. (“M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.”)
  72. CALCRIM 731 – Special Circumstances: Murder in Commission of a Felony – Kidnapping With Intent to Kill.
  73. Penal Code 190.2(a)(18) PC – Special circumstances murder. (“(18) The murder was intentional and involved the infliction of torture.”)
  74. CALCRIM 733 – Special Circumstances: Murder With Torture. (“To prove that this special circumstance is true, the People must prove that: 1. The defendant intended to kill ; 2. The defendant also intended to inflict extreme physical pain and suffering on while that person was still alive; 3. The defendant intended to inflict such pain and suffering on for the calculated purpose of revenge, extortion, persuasion, or any other sadistic reason; AND [4. The defendant did an act involving the infliction of extreme physical pain and suffering on .]
  75. Same. (“There is no requirement that the person killed be aware of the pain.”)
  76. Same. (” [4. The defendant in fact inflicted extreme physical pain on .]”)
  77. Penal Code 190.2(a)(19) PC – Special Circumstances Murder. (“(19) The defendant intentionally killed the victim by the administration of poison.”)
  78. Same.
  79. Penal Code 190.2(a)(21) PC – Special Circumstances Murder. “((21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, ‘motor vehicle’ means any vehicle as defined in Section 415 of the Vehicle Code.”)
  80. Same.
  81. CALCRIM 735 – Special Circumstances: Discharge From Vehicle. (“[A motor vehicle includes (a/an) (passenger vehicle/motorcycle/motor scooter/bus/school bus/commercial vehicle/truck tractor and trailer/ ).]”)
  82. People v. Rodriguez, (1998) 66 Cal.App.4th 157, 165. (“Defendant argues that all the special circumstances listed in section 190.2-except for the ‘shooting out of a vehicle’ special circumstance-concern situations in which some level of premeditation or prior criminal involvement is inherent. For example, murder for financial gain, murder by explosive, murder of a public official in retaliation for performance of official duties, murder while lying in wait, all types of felony murder, murder by torture or poison, etc., are all argued to require premeditation or prior criminal involvement. Murder by shooting out of a vehicle, however, need not necessarily be the product of premeditation, nor need it involve prior criminal activity of any kind (as felony murder does). Instead such a murder could be the product of sudden and spontaneous rage, occurring without premeditation and not occurring in connection with the commission (or attempt to commit) any felony.”)
  83. Same.
  84. Same, at 181. (“No violation of substantive due process has been demonstrated.”)
  85. Penal Code 186.22(b). (“(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion.(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.”)
  86. Penal Code 190.2(a)(22) – Special Circumstances Murder. (“(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.”)
  87. CALCRIM 736 – Special Circumstances: Killing by Street Gang Member. (“To prove that this special circumstance is true, the People must prove that: 1. The defendant intentionally killed ; 2. At the time of the killing, the defendant was an active participant in a criminal street gang; 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; AND 4. The murder was carried out to further the activities of the criminal street gang. Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [The People do not have to prove that the defendant devoted all or a substantial part of (his/her) time or efforts to the gang, or that (he/she) was an actual member of the gang.]”)
  88. Penal Code 190.2(a)(14) – Special Circumstances Murder. (“(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase ‘especially heinous, atrocious, or cruel, manifesting exceptional depravity’ means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.”)
  89. People v. Sup. Ct. (Engert), (1982) 31 Cal.3d 797, 806. (“For the reasons stated, we conclude, therefore, that subdivision (a)(14) in Penal Code section 190.2 is unconstitutionally vague and violative of the due process clause of the Fourteenth Amendment of the United States Constitution and article I, sections 7, subdivision (a) and 15 of the Constitution of the State of California.”)