Other Special Circumstances Justifying
Category > Other Special Circumstances Justifying
Absent evidence that defendant arrived before the victims or waited in ambush for their arrival, there was no basis to instruct on lying-in-wait first degree murder or the lying-in-wait special circumstance.There was insufficient evidence to support the instructions on lying-in-wait first degree murder, and the lying-in- wait special circumstance allegation. Defendant concealed his bicycle, approached and shot the victims from behind and then shot them again to make sure they were dead. However, there was no evidence that he arrived in the parking lot before the victims or waited in ambush for their arrival. Absent that evidence, the trial court erred by instructing on lying in wait.id: 24861
Evidence was insufficient to support the lying-in-wait special circumstance where it did not show that defendant lured the victim to his home intending to kill her. The evidence was insufficient to support the lying-in-wait special circumstance. The evidence strongly supported a finding that defendant killed the victim after premeditation, when he learned that she had not dropped the charges, but it did not support a finding that he lured her to his home intending to kill her. There was therefore no evidence of a substantial period of watching and waiting for an opportune time to act.id: 25215
Lying-in-wait special circumstance was reversed where the prosecution relied on circumstantial evidence and the trial court failed to instruct with CALJIC No. 8.83 or 8.83.1.The prosecutor’s case for the lying-in-wait special circumstance substantially relied on circumstantial evidence. The trial court therefore had a sua sponte duty to instruct with CALJIC Nos. 8.83 or 8.83.1, which emphasize among other things that if the circumstantial evidence is susceptible to two reasonable interpretations, the jurors must adopt the one that favors the defendant. The failure to give the instruction was prejudicial where there was a reasonable chance that the jury had been properly instructed it would not have found the special circumstance to be true.id: 24451
Error in kidnapping special circumstance was harmless where the jury found the murder was intentional and involved torture.The kidnap special circumstance instruction erroneously allowed a finding based on reckless indifference to human life, rather than intent to kill. The error was a product of a conflict in the CALCRIM instruction. However, the error was harmless where the jury found true the special circumstance that the murder was intentional and involved torture.id: 24496
Kidnap-murder special circumstance was set aside where the trial court improperly instructed on simple kidnapping.The kidnapping-murder special circumstance was set aside because the trial court’s instruction provided a definition of simple kidnapping that was not in effect at the time of the alleged crimes. While the court gave a proper instruction on aggravated kidnapping, it was not possible to determine whether the jury’s verdict rested on the correct legal theory. id: 24186
Prior murder conviction was invalid under double jeopardy principles where it followed a juvenile manslaughter adjudication, and the prosecution could not allege the prior as a special circumstance in a death penalty case.In support of a prior murder special circumstance (Penal Code section 190.2, subd.(a)(2)) the prosecution alleged defendant’s 1971 murder of Allen Rothenberg. However, the murder conviction in adult court in that case took place after a juvenile adjudication finding involuntary manslaughter in the same case. In Breed v. Jones (1975) 421 U.S. 519, 531, the court found the same action violated double jeopardy principles. Breed applied retroactively here and the prosecution could not use the 1971 murder conviction as a special circumstance. Neither could the prosecution use the invalid murder conviction to impeach the defendant’s testimony. id: 24111
The trial court erred by failing to instruct that to find a multiple murder special circumstance true for an aider and abetter the jury must find he acted with the intent to kill.The trial court erred by instructing the jury it could find the multiple murder special circumstance allegation to be true as to a defendant who was not the actual killer without finding that he acted without the intent to kill. However, the error was harmless where the jury necessarily found that any defendant it convicted of murder as an accomplice acted with the intent to kill.id: 23258
Evidence did not support the lying-in-wait special circumstance where there was no concealment contemporaneous with a substantial period of watching and waiting. Evidence did not support the lying-in-wait special circumstance as the victim was killed as defendants were waiting for her granddaughter to arrive home and held the victim hostage in the meantime. Under the law that existed at the time of the crime, the evidence failed to establish that defendants' concealment was contemporaneous with a substantial period of watching and waiting for an opportune time to act, or that their concealment allowed them to launch a surprise attack on an unsuspecting victim from a position of advantage. However, the remaining special circumstance was valid. id: 23580
Instruction given on the torture-murder special circumstance improperly deleted the actus reus requirement. The trial court erred by deleting the actus reus requirement from the torture-murder special circumstance instruction it gave to the jury (following a “use note” in the pattern instruction). However, in light of the defendant’s admissions, the arguments of counsel and the overwhelming evidence on the point, there was no possibility that the special circumstance finding was based on a mere intent to torture unrealized by an act of torture. id: 21732
Evidence did not support kidnapping-for-robbery or the kidnapping-murder special circumstance where it was not shown the victim was alive while dragged away.The evidence showed that after the stabbing, the defendant dragged the victim over 100 feet to a place that was difficult to see from the road. However, the evidence was insufficient to prove that the victim was still alive at the time of the dragging. Therefore, the court reversed the kidnapping-for robbery conviction and kidnapping-murder special circumstances. id: 16709
The evidence did not show defendant’s group known as the Small Town Peckerwoods were a street gang because there was insufficient evidence connecting them to the larger Peckerwood gang.Evidence was insufficient to support the gang activity special circumstance (Penal Code section 190.2, subd.(a) 22) and the active participation in a street gang count under section 186.22, subd.(a) because it was never established that defendant’s small group known as the Small Town Peckerwoods constituted a criminal street gang. While there was a larger group known as the Peckerwoods which was a street gang, there has to be something more than a shared ideology or philosophy or a common name before multiple units can be treated as a whole for this purpose. There was an insufficient connection between the two groups to show defendant’s group was a street gang. id: 20622
Evidence was insufficient to support the torture–murder special circumstance where defendant beat the robbery victim to death to prevent her from identifying him.The evidence was insufficient to support the torture-murder special circumstance as there was no evidence that he deliberately inflicted nonfatal wounds to the victim in an attempt to increase her suffering. Defendant repeatedly struck the victim in the head with a blunt object and had previously said he had killed the robbery victim to prevent her from identifying him. This does not establish torture and the fact that the victim’s hands and feet were bound at the time did not convert the lethal beating into torture.id: 20504
The evidence did not support the lying-in-wait special circumstance where the only admissible evidence showed defendants killed the victim without a watchful waiting period.There was no admissible evidence of a substantial period of watching and waiting to support the lying-in-wait special circumstance. The evidence showed a car collision , an altercation, a decision to kill, and the taking of the truck. Although the prosecutor argued defendant’s friend followed the victim for a substantial period of time before bumping his truck, the only evidence to support the claim was the codefendant’s statement which was inadmissible against defendant.id: 20431
Murders were not committed “while” lying in wait for purposes of the special circumstance statute where defendants waited and then drove around withdrawing money from the victims’ ATM accounts before killing them.Although the record showed defendant and his companions lay in wait intending to rob and kill certain victims, and they began carrying out the intent to rob as soon as the lying in wait ended, there was no evidence that defendants carried out their intent to kill immediately. Instead , completing the robberies took an extended period of time as they drove around withdrawing money from the victims’ ATM accounts. Therefore, the murders were not committed “while” lying in wait for purposes of the special circumstance.id: 20430
Evidence was insufficient to support special circumstance that murder was committed to avoid arrest, but death penalty still proper.The jury found special circumstances existed because the defendant had committed the murder to avoid arrest during the commission of a burglary and robbery. The Supreme Court reversed the first finding, stating there was no evidence that any imminent arrest was possible under the circumstances. The murder/robbery took place in a remote area, and the police had not yet been called. However, special circumstances could be found in both the robbery and the burglary. Each are distinct offenses directed against different victims (person vs. home). The erroneous finding of a special circumstance of killing to avoid arrest did not prejudice the defendant to such a degree as to require reversal of the death sentence.id: 14262
Delivery-of-explosives special circumstance does not apply to murders in which the death is caused by a gasoline generated fire.The delivery-of-explosives special circumstance does not apply to murders in which death is caused by a gasoline generated fire. However, because the defendant had concurrent purposes in starting the fires in the victim's home, the special circumstance of murder in the commission of arson was properly charged and found. Finally, defendant suffered no prejudice as a result of either the erroneous explosives special circumstance or the omission of the requested instruction that before the arson special circumstance could be found true, the jury must find that defendant had an independent felonious purpose for the arson.id: 14253
Torture-murder special circumstance was improper where the victim died before the dismemberment or amputation occurred.Evidence supported the trial court's striking of the torture<197>murder special circumstance since Penal Code section 190.2(a)(14) requires evidence of extreme physical pain inflicted before death and the instant record established that the victim died before the dismemberment or amputation occurred.id: 14295
Two witness-killing special circumstance findings were improper where both killings were part of a single transaction.Evidence was insufficient to support the witness-killing special circumstance findings as to both murders where the two murders were part of a single continuous criminal transaction.id: 14297
Witness-killing special circumstance was improper where the victims were killed in one continuous criminal transaction.Defendant killed the mother of the two little girls on Saturday night and then continued to sexually molest the girls until Monday. He then decided to kill the girls in order to keep from being implicated. The evidence did not support the killing of a witness special circumstance because that provision applies to the killing of a victim who has witnessed a crime prior to, and separate from the killing. Here, the crime witnessed was not prior to or separate from the killing of the witness because all of the killings were part of one continuous transaction.id: 14299
Court erred in failing to instruct the jury that the torture-murder special circumstance requires proof of an intent to inflict torture.The torture-murder special circumstance requires proof of first degree murder, proof the defendant intended to kill and to torture the victim and the infliction of an extremely painful act upon a living victim. The special circumstance finding was set aside where the jury was not instructed on the intent to inflict torture.id: 14247
Failure to instruct that the corpus delicti rule applies to the felony-based special circumstances was harmless error.The trial court's failure to deliver a specific instruction that the corpus delicti rule applies to a felony-based special circumstance was harmless error. The jury was clearly instructed on the elements of rape and robbery as well as the requirement that it find that the evidence establish the corpus delicti of those crimes without defendant's extrajudicial statements.id: 14263
Trial court erred in failing to obtain a jury finding on the multiple-murder special-circumstance allegation.The trial court erred in failing to submit the multiple-murder special circumstance finding to the jury. Instead, the court found no finding was necessary where the jury returned two first degree murder verdicts. The court's failure to permit the jury to make a finding on the special circumstance allegation was not a structural defect requiring reversal. The error was harmless where there was no possibility the jury would have found defendant was not death-eligible had the allegation been submitted to it.id: 14296
Torture-murder special circumstance instruction was flawed because it did not require a finding that defendant personally intended the torture.By referring to "a defendant" rather than "the defendant" the torture-murder special circumstance instruction permitted the jury to find the special circumstance true without finding that defendant personally intended to torture. This violated defendant's rights to due process and trial by jury. The error was prejudicial where others participated in the torture and the evidence showed some reluctance on defendant's part.id: 17676
Evidence supporting the lying-in-wait special circumstance was overly reliant upon the prosecutor's inference that he arrived prior to the victim in order to attack her by surprise.The evidence of wood chips (showing forced entry), and the car with its engine running did not support the lying-in-wait special circumstance as it was unduly reliant upon the inference suggested by the prosecutor that defendant arrived prior to the victim's return home in order to attack her by surprise.id: 18736
Death sentence was set aside as the court erred in denying the motion to dismiss the prior-murder-conviction special circumstance based upon a fundamental constitutional flaw and inapplicability of Custis v. United States to capital proceedings.At the start of the guilt phase trial defendant moved to strike the special circumstance allegation of his 1973 Illinois murder conviction. At the Illinois trial defendant's counsel was absent when the jury informed the court it was deadlocked. Counsel for codefendant (who was authorized to accept a verdict on defendant's behalf) and the prosecutor urged the court to send the jury back for further deliberations, which the court did. Defendant was convicted and the codefendant acquitted. California law establishes a procedure for raising a collateral attack on a prior conviction by a defendant whose sentence is subject to enhancement because of the prior. However, in Custis v. United States (1994) ___ U.S. ____, [114 S.Ct. 1732] the United States Supreme Court found as a matter of federal law that a defendant has no right to collaterally attack priors unless they were obtained in violation of his right to counsel. However, in the context of a capital case, a collateral challenge to a prior that has been alleged as a special circumstance may not be confined to a claim of Gideon error, but may be based upon other types of constitutional flaws. Defendant showed he was denied the assistance of counsel at a critical stage of trial and this gave rise to a presumption of prejudice. The prior-murder-conviction special circumstance and death sentence were set aside although the penalty phase may be retried based upon the robbery-murder special circumstance.id: 14174
Updated 6/1/2024After AB 333, evidence that a crime was committed to enhance the gang’s reputation for violence was admissible to prove the gang-murder special circumstance under Penal Code section 190.2(c)(22).Evidence supported the gang-murder special circumstance where it showed defendant was a member of a gang that commits violent crimes to enhance its reputation (not part of AB 333), which discourages people from talking to law enforcement thus allowing the gang to continue to commit crimes. Homicide is one of the gang’s primary activities. A jury could reasonably infer the two gang members engaged in the primary activity of killing in order to enhance the gang’s reputation for retaliatory violence.id: 28290
Updated 3/6/2024Conspiracy to commit murder does not make a defendant death eligible.Conspiracy to commit murder cannot make a defendant eligible for the death penalty, and the court vacated the multiple special circumstance true findings as to the conspiracy to commit murder count, and the death sentence imposed for that count.id: 26549
Updated 2/24/2024Evidence of the killer’s lying-in-wait supported the special circumstance for defendant who was prosecuted as an aider and abettor.Defendant was convicted of capital murder as a direct aider and abettor. He argued the evidence was insufficient to support the lying-in-wait special circumstance. While there was evidence of defendant’s intent to kill, he argued the evidence of the actual killer’s intent could not be imputed to him. However, the evidence was sufficient to support the special circumstance finding.id: 26730
Updated 2/24/2024The criminal street gang special circumstance was not void for vagueness.Defendant argued the criminal street gang circumstance described in Penal Code section 190.2, (a)(22) was void for vagueness and it was unclear whether the “activities” of the gang included innocent as well as criminal conduct. However, the statute can only reasonably be interpreted to refer to a group of individuals who engage in a pattern of criminal activity.id: 26766
Updated 2/22/2024AB 333 does not alter the scope of the gang-related murder special circumstance.Proposition 21 added the gang-related murder special circumstance described in Penal Code section 190.2(a)(22). AB 333, which modifies the requirements of a street gang, takes away from Prop 21, and is unconstitutional to the extent it amends the initiatives. The remedy is to find AB 333 inapplicable to the gang-related special circumstance.id: 28027
Updated 2/3/2024Severe injuries inflicted on the head of a thirteen week-old child established evidence of intent to kill for purposes of the torture-murder special circumstance.The prosecution at the preliminary hearing provided sufficient evidence of intent to kill for purposes of the torture-murder special circumstance where the defendant used blunt force against the 13 week-old child causing several skull fractures and bruising to the brain.id: 27636
Failure to remove inapplicable theory from special circumstance instructions was harmless.Defendant was charged with first degree murder along with a special circumstance allegation of murder to prevent arrest or escape from lawful custody. The trial court erred by instructing on both theories because defendant was not in custody at the time of the murder. However, the error was harmless as the evidence strongly supported the other theory that the murder was committed to avoid arrest.id: 26210
Prior murder special circumstance can be applied where the prior murder was committed while the defendant was a juvenile.he Eighth Amendment does not bar imposition of the death penalty based on a prior murder special circumstance where the prior murder was committed when the defendant was a juvenile.id: 25675
Penal Code section 4500 is not infirm for failing to narrow the class of death-eligible inmates who commit assaults resulting in death. Under Penal Code section 4500, a life prisoner is eligible for a death sentence if convicted of assault with a deadly weapon or with force likely to produce great bodily injury, with malice aforethought, leading to the death of the victim. The provision was not infirm to failing to narrow the class of death-eligible individuals even though it failed to differentiate between the different types of life prisoners.id: 25035
Evidence supported lying in wait murder and the special circumstance where the defendant approached the victim’s house with a shotgun concealed in a laundry basket.Evidence supported both the first degree murder on a theory of lying in wait, and the lying in wait special circumstance where the defendant went to the victim’s door with a shotgun concealed in the laundry basket he was carrying. This was a deliberate subterfuge aimed at making his presence at the house appear innocuous. There was some period of watching and waiting at the door. Contrary to defendant’s claim, the lying in wait jury instructions were not impossible to understand or apply.id: 24419
Evidence supported the kidnapping-murder special circumstance given the complicated relationship between defendant and the victim, and the three hour gap before firefighters found her in the burning car. There was sufficient evidence to support the kidnapping-murder special circumstance given the three hour gap between the time the victim left Harvey’s house and the firefighter’s discovery of her burning car, and the evidence that defendant had a complicated relationship with the victim and a fragile and emotional mental state.id: 25180
The robbery-murder special circumstance was not unconstitutionally vague for failing to define “major participant.” The robbery-murder special circumstance instruction was not vague for failing to define the term “major participant.” In any event, that issue was not relevant where there was substantial evidence showing defendant was the actual killer. It did not matter that the jury rejected the personal firearm use allegation.id: 25109
Evidence showed concealment of purpose for the lying-in-wait special circumstance allegation even though the victim knew defendant may have intended to hurt him when they went on a drug run.Defendant argued the evidence was insufficient to support the lying-in-wait special circumstance finding because the victim was aware that the gang was upset with him after giving the news interview and he knew defendant might attack him when they went to purchase drugs. He claimed the record failed to show the required nexus between concealment of purpose and a purpose attack from a position of advantage. However, while the victim may have known there would be consequences for his actions, this did not mean he expected to be executed.id: 24485
Amending special circumstance to apply to killings “by means of” lying-in-wait rather than “while” lying-in-wait did not violate the Eighth Amendment.The amended lying-in-wait special circumstance that sought to eliminate the temporal distinction between the special circumstance and lying-in-wait murder satisfies the Eighth Amendment and did not allow arbitrary determinations to be made regarding the special circumstance. id: 24486
Prior murder special circumstance was valid where it was based on an offense that occurred after the capital offense. The prior murder special circumstance finding was valid even though that killing occurred after the capital offense. The order of the commission of the homicides is immaterial for purposes of the special circumstance.id: 24488
Florida conviction not yet final was properly alleged for purposes of the prior-murder special circumstance.The prosecution properly used a Florida murder conviction for purposes of the prior-murder-conviction special circumstance even though the murder was committed five weeks after the charged offense. Defendant was convicted of the Florida offense first and it did not matter that the conviction was not final on appeal when alleged in the present case.id: 23274
Evidence supported the torture-murder special circumstance for the condefendant who claimed to have just been following his friend with no knowledge of the plan.The evidence was sufficient to support the torture-murder special circumstance against the codefendant who claimed that he tagged along with the defendant out of friendship and without any knowledge of the codefendant’s plan. However, there was evidence to show defendant actively participated in the torture, or at least that he shared the codefendant’s intent, and aided and abetted in the torture murder.id: 23581
The torture-murder special circumstance instruction failed to convey the requirement that each defendant need intend to kill the victim.The torture-murder special circumstance instruction was erroneous in that it failed to properly convey the requirement that both defendants intended to kill the victim. However, the error was harmless in light of the evidence of intent to kill by both defendants.id: 23585
Evidence supported the gang murder special circumstance where it showed the attempted murder of Pulido, which resulted in the provocative act murder of Lorenzo, was carried out to further the gang.Evidence was sufficient to support the gang murder special circumstance where the facts showed the attempted murder of Pulido (committed against a rival gang following disrespect) was carried out to further activities of the 18th Street gang.id: 23025
The gang murder special circumstance and gang enhancements can apply where liability for first degree murder is based on the theory of provocative act murder. The gang murder special circumstance (Penal Code section 190.2, subd.(a)(22) can apply to provocative act murder. To the extent a defendant with express malice and premeditation proximately causes a death by committing the requisite provocative act, he has intentionally killed the victim despite the intervening use of deadly force by a third party. This is so even though the ultimate victim may be the defendant’s crime partner. Similarly, the gang enhancement under section 186.22, subd.(b) can also apply in the context of provocative act murder. id: 23024
Police officer was performing his duties when murdered for purposes of the police officer murder special circumstance when he detained defendant’s group to search for weapons.Defendant argued the evidence did not support the murder of a police officer special circumstance (Penal Code section 190.2, subd.(a)(7)) because the victim was not acting lawfully in the performance of his duties when killed. However, the officer was performing his duty when he detained defendant and his companions to conduct a patsearch for weapons in an incident that began as a consensual encounter.id: 22483
The trial court erred by striking the lying-in-wait special circumstance under Penal Code section 1385.Penal Code section 1385.1 prohibits a trial court from dismissing a special circumstance allegation the jury found to be true. The prosecution did not have to separately appeal the issue and the court could reinstate the lying-in-wait special circumstance pursuant to its statutory power provided under section 1260.id: 22482
The murder during oral copulation special circumstance does not require that the oral copulation be defendant’s primary objective and the finding was supported where defendant spoke of the act in connection with the beating and strangulation.The trial court did not err in responding to the jury’s question that for purposes of the murder in the commission of oral copulation special circumstance, the jury need not find oral copulation was the defendant’s primary objective. Moreover, evidence supported the finding where it showed he had a sexual interest in the inmate victim or wanted to humiliate him through sodomy before strangling him. Defendant’s commission of oral copulation was not incidental to the murder.id: 22499
The financial gain special instruction was not improper for failing to require that the hirer was motivated by financial gain.The instruction concerning the financial gain special circumstance did not improperly instruct the jury that the hirer of murder is subject to the special circumstance even if his motive was not financial gain. It is enough that the non-killer hired another to kill and the killer was motivated by financial gain.id: 22350
One who hires for murder is subject to the financial gain special circumstance whether he directly hires the actual killer or uses an intermediary.Defendant argued the evidence was insufficient to sustain the financial gain special circumstance because the person he paid to commit the murder was not the actual killer. However, one who hires for murder is subject to the provision regardless of whether he directly hires the killer or there is an intermediary between the hirer and the killer.id: 22349
The trial court did not err by instructing that 90 seconds can be a substantial period of time for purposes of lying-in-wait special circumstance.The trial court’s instruction that lying-in-wait could occur within 90 seconds was a correct statement of the law and did not direct a verdict or invade the province of the jury.id: 22348
Penal Code section 190.2, subd.(c) requires that an aider and abettor intended to kill at the time of the aiding and abetting, not at the time of the killing.Defendant argued the trial court erred by not instructing that the special circumstance allegations could not be found true unless the jury determined he still harbored an intent to kill at the time of the killing rather than at the time he aided and abetted the killing. However, the special circumstance statute requires that an aider and abettor have the intent to kill when he aids and abets, not necessarily when the killing takes place.id: 22345
Evidence supported the murder during a rape special circumstance even though no semen was found on the victim’s body. Defendant argued the evidence was insufficient to support the murder in the course of a rape special circumstance because no semen was found on the victim’s body. However, the evidence showed defendant had his other victims clean themselves after the rapes. Defendant’s claim is inconsistent with his modus operandi. Moreover, an attempted rape, which does not require penetration, would also support the special circumstance allegation. id: 22404
Witness-murder special circumstance was supported by evidence where defendant, after detaining the girls in the bathroom, decided they could not be trusted and decided to kill them. Defendant argued the evidence did not support the witness-murder special circumstance because there was no evidence that he murdered Laurie to prevent her from testifying about the assault on Angie. The special circumstance does not apply where the two crimes are part of a continuous criminal transaction. However, the jurors could infer a new criminal transaction occurred when defendant returned to the bathroom where the girls were tied up because he decided they could not be trusted and he needed to kill them.id: 22427
The trial court erred by omitting the intent to kill requirement from the torture-murder special circumstance.The trial court erred in instructing on intent to kill for purposes of the torture-murder special circumstance because it is not one of the felony-murder special circumstances set out in Penal Code section 190.2, subd.(a)(17), Rather, is described in subdivision (a)(18) and requires the intent to kill regardless of whether defendant killed personally or assisted an accomplice in doing so. The instruction error was not harmless and required that the torture-murder special circumstance be vacated. id: 22555
The murder by an active gang member special circumstance did not require proof of defendant’s knowledge of the gang’s criminal activities. Defendant argued the special circumstance of murder by an active participant in a street gang (Penal Code section 190.2, subd.(a)(3)(22)) was improperly imposed because the prosecution failed to prove defendant knew the gang was engaged in illegal activities. However, the provision only requires that the prosecution prove defendant was an active member of the gang when he murdered the victim and the murders were carried out to further the gang’s activities. The prosecution was not required to prove defendant’s subjective knowledge of the criminal activities of his fellow gang members.id: 21879
There was no improper overlap between special circumstances of murder to avoid arrest and murder of a police officer. There was no improper overlap between the special circumstance of murder to avoid arrest under Penal Code section 190.2, subd.(a)(5) and the murder of a peace officer under section 190.2 ,subd.(a)(7) since the former can occur even where the victim is not a police officer. id: 21314
The trial court did not err in allowing expert testimony on defendant’s White supremacist and anti-semitic beliefs based on materials found in his house where he killed a Vietnamese man and made racist comments at the time. Defendant was convicted of the murder of a Vietnamese victim. He argued the trial court erred by allowing a police expert to testify that material found in defendant’s bedroom referred to White supremacist organizations and espoused White supremacist beliefs. However, the court did not err in refusing to limit the evidence which was relevant to defendant’s state of mind at the time of the killing, and whether he killed the victim because of his race for purposes of the hate-murder special circumstance. id: 20589
Evidence supported the financial gain special circumstance where the death of the mother of defendant’s son would allow him to decide how to spend the child support money.Defendant argued the evidence was insufficient to support the murder for financial gain special circumstance where the prosecutor’s theory was that defendant killed his son’s mother to avoid $375 per month child support payments which he would still have to pay if she was dead. However, the jury could conclude that defendant sought to benefit financially from the killing by gaining control of the support money and having the ability to decide how it should be spent.id: 20600
Independent standard of review was not required to assess sufficiency of hate-murder special circumstance since the provision did not punish protected First Amendment speech. Defendant was convicted of first degree murder along with the hate murder special circumstance. He argued the court should use the de novo standard of review to assess whether the evidence supported the special circumstance because it implicated his First Amendment rights. However, the provision is not directed at protected free speech, but applies where a murder is committed because of racial bias. The independent review standard was not warranted. Moreover, evidence supported the hate-murder special circumstance where it showed defendant was a member of a White supremacist organization that advocated racial hatred, and he acknowledged animus toward Asians, even boasting about “killing a Jap”. id: 20601
Evidence supported the lying-in-wait special circumstance where defendant arrested in the back of a patrol car, secured a gun from the front seat and later shot the officer in a secluded area.Evidence supported the lying-in-wait special circumstance where defendant while handcuffed in the back of police car kicked the front seat discovering a fanny pack which contained the officer’s backup handgun, ultimately retrieving the gun through the seat, hiding it, and later shooting the officer in a relatively secluded area in order to escape.id: 20440
Escape from custody special circumstance requires only that defendant be arrested prior to the escape attempt, and does not require a formal charge or conviction.A formal charge and conviction of escape under Penal Code section 4532 is not required to establish the murder to effect an escape special circumstance. (Penal Code section 190.2 subd.(a)(5)). Defendant was lawfully arrested before his attempted escape and no more was required. Since defendant’s arrest was recorded, in police records, he was technically “booked for purposes of the statute.id: 20439
Attempted rape may serve as the basis of a special circumstance finding.Defendant argued there can be no special circumstance finding under Penal Code section 190.2, subd.(a)(17)(c) predicated upon a killing which occurs in conjunction with an attempted rape. He claimed that because once the victim died it was impossible to commit rape, no killing during the course of an attempted rape could further the purpose of completing the crime. However, attempted rape may serve as the bases for the special circumstance finding even though intentionally killing the victim in the process might legally prevent the rape.id: 20271
The unlawful penetration with a foreign object and resulting homicide did not merge within the meaning the Ireland merger doctrine.Defendant was convicted of first degree murder along with the special circumstance that it occurred during the unlawful penetration with a foreign object pursuant to Penal Code section 190.2, subd(a)(17). The offenses did not merge within the meaning of People v. Ireland (1969) 70 Cal.2d 522, because the unlawful penetration with a foreign object had an independent felonious purpose, namely to sexually arouse.id: 19956
Witness killing special circumstance is not limited to the killing of an eyewitness to a crime.Defendant argued the evidence was insufficient to support the witness killing special circumstance because that allegation only applies to a victim who was an eyewitness to a prior offense, not simply one to whom defendant made incriminating statements. However, the special circumstance is not confined to the killing of an eyewitness as opposed to any other
witness who might testify in a criminal trial.id: 19801
To find lying-in-wait special circumstance true, the jury need not find defendant personally lay in wait if it finds he aided and abetted the killer who lay in wait. Defendant argued the modified version of CALJIC 8.81.15 regarding the elements of the lying-in-wait special circumstance violated due process and the Eighth Amendment by not requiring
that the jury find he personally lay in wait and killed the victim. However, a jury may properly find the special circumstance true if it finds defendant, with the intent to kill, aided and abetted Nichols who lay in wait for and murdered the victim.id: 19700
Overlap between premeditation element of first degree murder and durational element of lying-in-wait special circumstance does not undermine the narrowing function of the latter.Defendant argued the lying-in-wait special circumstance was
unconstitutional because, if the temporal element is the equivalent to that of first degree murder, then the statute loses all claims to performing the required narrowing function. However, any overlap in both contexts of lying-in-wait does not undermine the narrowing function of the special circumstance.id: 19675
The witness-killing special circumstance applied where the killing took place more than a week after the crime.The witness-killing special circumstance applies only if the
killing was not part of the original crime. It applied here where the August 26 robbery was long completed at the time of the September 5 murder and defendant did not have continuous control of the victim during that period.id: 19216
Evidence that defendant attacked the victim from the back seat of the car after driving to an isolated area supported the lying-in-wait special circumstance.Evidence supported the lying-in-wait special circumstance where the victim was lured into codefendant's car, and once the car reached an isolated location, the defendant launched a surprise attack from the back seat - a position of advantage.id: 18996
The trial court properly instructed on the doctrine of transferred intent in relation to the gang-murder special circumstance allegation.Defendant argued the gang-murder special circumstance set forth in Penal Code section 190.2, subd.(a)(22) cannot be applied to a person who intended to kill one person but ultimately killed someone else. However, the special circumstance must be interpreted to incorporate the doctrine of transferred
intent, and defendant's reliance on the rule of lenity lacked merit. The special circumstance may be upheld where a defendant, an active member acting on behalf of the gang, has performed an act with an intent to kill that resulted in the killing of any individual.id: 18971
Prior-murder special circumstance applied even though it occurred after the charged offenses.Defendant argued the prior murder special circumstance had to be reversed because the underlying murder occurred after the three murders at issue in the present proceeding and thus did not qualify as a "prior" murder. However, for purposes of the prior-murder special circumstance, the order of the offenses is immaterial.id: 18914
Evidence of multiple stab wounds that were not potentially fatal supported the torture murder conviction and torture special circumstance.The victim suffered 81 pre-mortem stab and slash wounds, only three of which were potentially fatal. Some, including the splitting of her eyelids, suggested a meticulous, controlled approach. Moreover, the evidence showed defendant may have tortured the victim to coerce her to reveal the combination to a safe. Contrary to defendant's claim, the question of how long the victim actually suffered is beside the point as long as the defendant intended to inflict prolonged pain. The evidence was sufficient to support murder by torture, and the torture special circumstance.id: 18835
Evidence that the victim was found stabbed near the floor safe with her purse emptied out supported the felony murder conviction and attempted robbery-murder special circumstance.The victim was found, stabbed repeatedly, next to floor space hidden in the back room of a bar. The contents of her purse were strewn about the floor. The attack occurred after the bar was closed. The jury could have concluded defendant forced the victim at knifepoint to the back room, to rob her of the night's receipts, and then inflicted the fatal wounds as part of the attempted robbery. The evidence supported the felony murder conviction and attempted robbery-murder special circumstance.id: 18836
Evidence supported the lying-in-wait special circumstance despite defendant's claim that he waited 90 seconds before killing the victim.Defendant argued the evidence was insufficient to support the lying-in-wait special circumstance. He claimed that because he waited only 90 seconds after the victim returned home before he killed her, the evidence was did not show the watching and waiting was for a "substantial period of time." The court has never placed a fixed time on this requirement. In any event, it was unlikely that defendant's 90 second estimate was accurate since he described several events that took place which likely took more time.id: 18722
The multiple-murder special circumstance was not irrational where, because of defendant's successful severance motion, the order of convictions subjected him to the death penalty.Prior to defendant's capital trial, the court granted the defense motion to sever the murder charges. He argued the multiple murder special circumstance was irrational and denied him due process because it depended upon the fortuity of the order in which the murder convictions occurred. (If the first murder conviction was for first degree murder, rather than as here for second degree murder, the special circumstance would not apply.) However, there was nothing arbitrary or irrational in this determination simply because of defendant's successful severance motion, the order of convictions subjected him to the death penalty.id: 18639
The special circumstance regarding the lewd act on a chid can be based on the same conduct as the felony-murder rape and sodomy special circumstances.Defendant argued that because lewd conduct special circumstance is based on the same evidence as the rape and sodomy special circumstances, the lewd conduct special circumstance violates the prohibition against cumulative use of the same conduct. However, the rape or sodomy and lewd conduct, while based upon the same conduct, are not the same crimes but were part of an indivisible course of conduct, and therefore each felony can be considered a distinct aggravating factor.id: 18380
Defendant's previous death threats did not negate the surprise element of the lying-in-wait special circumstance.The evidence was sufficient to support the lying-in-wait special circumstance. Contrary to defendant's claim, the fact that defendant had repeatedly threatened to kill the victim in the past did not negate the surprise element of lying-in-wait. Moreover, the fact that defendant was seen on the street shortly before the murder by neighbors did not negate the concealment element. After the victim and her friend returned home, defendant approached and shot the victim before she left the car. The friend testified she did not see anyone in the street and did not see anyone approach. This was sufficient evidence of concealment.id: 18316
Evidence supported the lying-in-wait special circumstance where defendant tricked the victim into driving him to the desert, and then surprised her by strangling her from behind.Defendant argued the evidence did not support the lying-in-wait special circumstance because he was not physically concealed in the car, and the lying-in-wait period was disrupted when the occupants briefly stepped away from the car. However, to carry out his plan to rob and kill the victim, defendant devised a ruse about needing a ride to the campsite. He therefore tricked the victim into driving him to the desert. He sat in the back seat behind her with an electrical cord in his pocket. They left the car briefly then reentered it. The victim drove a little further and then parked. Defendant then strangled her from behind with the cord. Substantial evidence supported the finding.id: 18279
Evidence of the victim's suffering prior to death was relevant to prove the torture-murder special circumstance.Defendant argued the trial court erred in admitting evidence of the victim's suffering several days prior to death. However, at the time of the offense, an act calculated to cause extreme pain was an element of the torture-murder special circumstance. In light of evidence that defendant deliberately poured a flammable liquid in two places, told the victim as he set the fire, that he hoped she burned in hell, and his subsequent statements that he wanted to kill her, evidence that the victim suffered extreme pain was relevant to show defendant intended to cause extreme pain.id: 18037
The trial court did not err in failing to instruct regarding the torture-murder special circumstance that the intent to inflict extreme pain must be deliberate and premeditated.The trial court did not err in failing to instruct that for purposes of the torture-murder special circumstance the intent to inflict extreme pain must be premeditated and deliberate. Because the intent to inflict extreme pain essentially equates to the premeditation and deliberation aspect that renders other murders sufficiently reprehensible to constitute first degree murder, it was unnecessary to expressly instruct that the requisite intent must be premeditated and deliberate. Moreover, the court did not err in failing to instruct that the intent to inflict extreme pain must be in addition to the intent to cause pain necessary for death.id: 18041
A defendant is subject to a prior murder special circumstance for each prior murder conviction.A defendant was charged with first degree murder along with six allegations of prior first degree murder convictions under Penal Code section 190.2(a)(2). He argued the court erred in submitting six, rather than one, prior murder special circumstance allegation to the jury. However, a defendant is subject to a prior murder special circumstance for each prior first or second degree murder conviction.id: 17735
1980 plea in Texas to both intentionally and knowingly shooting the victim, established at least implied malice, and the conviction could be used for the prior murder special circumstance.Defendant argued that his 1980 Texas plea to "unlawfully intentionally and knowingly" shooting and killing a person did not qualify for the prior murder special circumstance because the Texas statute did not take into account voluntary intoxication, imperfect self-defense or other factors that would reduce the offense in California to manslaughter. However, defendant's plea to both intentionally and knowingly shooting his victim eliminated any uncertainty as to whether his act qualified, at the least, as an implied malice murder under California law.id: 17534
Evidence that defendant held open the electric gate at the parking garage to facilitate the escape of his fellow gang member who robbed and shot a woman supported his convictions of murder and robbery as an aider and abettor, and the finding that he was a "major participant" for purposes of the felony-murder special circumstance.Defendant held open the electric gate of an apartment complex to facilitate the escape of his fellow gang member who had robbed and shot to death a woman just after she opened the gate with her key card. The evidence was sufficient to show defendant aided and abetted the robbery for purposes of the robbery conviction and the murder which was based on the felony murder theory. The evidence was also sufficient to show defendant was a "major participant" and acted with reckless indifference for human life to support the felony-murder special circumstance allegation.id: 17543
Financial gain special circumstance does not require the murder be committed primarily for financial gain.Defendant argued the financial gain special circumstance (Penal Code section 190.2, subd.(a)(1)) applies only when the victim's death was an essential prerequisite to the financial gain or the defendant had an expectation that the murder was necessary to obtain the financial gain. However, it is not required that the murder be committed exclusively or even primarily for financial gain. The only relevant inquiry is whether defendant committed the murder expecting that he would obtain the desired financial gain.id: 17549
Evidence of defendant's robbery of a stranded motorist in another case supported his intent to steal for purposes of the robbery-murder special circumstance.Defendant argued there was insufficient evidence of intent to steal to support the robbery-murder special circumstance. However, the testimony that defendant had recently committed a similar crime against another stranded motorist provided circumstantial evidence that his purpose in stopping for the victim in the present case was to steal.id: 17474
Evidence supported the financial gain special circumstance where a payment for the killing was one of the motivating factors.Defendant argued the evidence did not support the financial gain special circumstance where the evidence showed defendant's reasons for killing the victim were "personal" but the $20,000 he was offered was "like an added bonus." However, the special circumstance is not limited to cases where the financial gain is the primary motivation for the killing.id: 17489
Trial court was not required to give a unanimity instruction on the two theories used to determine the financial gain special circumstance where it was not an "either/or" decision.Defendant argued the trial court erred in failing to give a unanimity instruction where the financial gain special circumstance would have been based on two different theories. However, the prosecutor never suggested the issue could be resolved by finding one theory or the other. Instead, he wove the two incidents together. No juror would have found one theory but not the other.id: 17490
The true finding on the transportation-worker special circumstance (which does not provide for death) did not prevent the death penalty where other special circumstances were found true.Defendant argued penalty phase reversal was required due to the jury's finding of the transportation-worker special circumstance. This finding (under Penal Code section 190.25) only supports a sentence of life without possibility of parole. Defendant argued that even though the jury found two other special circumstances to be true, there was no way of telling for sure which caused the jury to return the death verdict. However, while section 190.25 does not authorize the death penalty, it does not prohibit that penalty if other special circumstances are proved true.id: 17463
Allowing death penalty for those who kill to obtain drugs to satisfy an addiction does not render the death penalty flawed for failing to "genuinely narrow" the class of death eligible persons.Defendant argued the financial gain special circumstance was unconstitutional as applied to him because the only financial gain he hoped to obtain was in the form of drugs to satisfy an addiction, and application of the special circumstance would fail to "genuinely narrow" the class of death eligible persons. However, there is no evidence he killed to victim to satisfy a drug addiction. Moreover, there is no constitutional impediment to a law that provides the death penalty for those who kill for financial gain but does not exclude those who kill to obtain drugs to satisfy an addiction.id: 17371
Lying-in-wait special circumstance provision was not vague following a change in the wording.The change in wording of Penal Code section 190.2, subd.(a)(15) made by Proposition 18, in 2000, from murder committed "while" lying in wait to "by means of" lying in wait, does not render the special circumstance unconstitutionally vague in violation of the U.S. Constitution. id: 17152
Evidence supported the robbery-murder special circumstance where jury could infer defendant killed the victim primarily to facilitate the robbery.Defendant argued the guilt phase evidence was insufficient to establish that the robbery was not merely incidental to the killing in the sense that defendant's "primary criminal goal" was to kill rather than steal. However, the evidence showed defendant killed the victim primarily and perhaps solely to facilitate the robbery, by preventing him from resisting or from alarming neighbors or others. The evidence therefore supported the robbery-murder special circumstance.id: 17094
Court did not err in failing to instruct that defendant's "primary" motivation must be intent to rob for robbery-murder special circumstance.Defendant argued the trial court erred by failing to instruct the jury in relation to the robbery-murder special circumstance that the intent to rob must be the "primary" motivation. However, a jury deciding the truth of the special circumstance allegation is not required to assign a hierarchy to the defendant's motives in order to determine which of the multiple concurrent intents was "primary." Instead, the jury need only find the commission of the underlying felony was not incidental to the murder.id: 17096
When defendant pled guilty to a murder in 1986 his future eligibility for the death penalty was only a possible collateral consequence of the plea not requiring an advisement.Defendant argued the prior-murder special circumstance must be reversed because he was not advised before the 1986 guilty plea that the murder conviction would make him eligible for the death penalty. However, the future possibility of the death penalty in the event of a second murder prosecution is not a direct consequence of the guilty plea that requires an advisement.id: 16939
Prior-murder special circumstance was appropriate even though it occurred after the charged murder.The prior-murder special circumstance was appropriate even though the "prior" murder occurred after the charged murder. The order of the commission of the homicides is immaterial for purposes of the special circumstance.id: 16940
Financial gain special circumstance applied even where the insurance company refused to pay the benefits, and defendant's girlfriend would be the direct recipient.Evidence supported the financial gain special circumstance finding even if the defendant's primary purpose was to protect the victim's daughter from her abusive mother. It did not matter for purposes of the financial gain special circumstance that the insurer refused to pay the life insurance benefits to the victim's daughter after the killing. Finally, it did not matter that the victim's daughter, not defendant, would be the direct recipient of the financial gain.id: 16904
Evidence supported the lying-in-wait special circumstance despite the brief interruption between the period of concealment and waiting, and the killing.Defendant argued the evidence did not support the lying-in-wait special circumstance because there was an interruption between the period of concealment and watchful waiting, and the killing. However, that defendant and Popik waited 30 minutes after the victim's apartment lights went out, until Paulk arrived in the getaway car, did not preclude the lying-in-wait special circumstance. As long as the murder is immediately preceded by lying in wait, the defendant need not strike at the first available opportunity, but may wait to maximize his position of advantage before taking the victim by surprise.id: 16902
Evidence supported the lying-in-wait special circumstance where defendant stabbed the urinating victim after he stepped outside the truck.The evidence supported the lying-in-wait special circumstance where the jury could reasonably find defendant stabbed the victim who was urinating near the truck, took him by surprise and had a position of advantage. That defendant could have stabbed him earlier while the victim slept did not defeat this finding since the jury could have found the most opportune time to take the victim by surprise came after he stepped outside the truck. Moreover, defendant's comment that he "ought to kill" the victim while he started urinating did not remove the element of surprise since the comment was virtually simultaneous with the stabbing. id: 16710
Use of felony-murder special circumstance in a provocative act murder case was not cruel and unusual.Defendant pistol-whipped the robbery victim, who, in turn shot defendant's confederate. The murder was committed during a robbery and it qualified under the felony murder special circumstance set forth in Penal Code section 190.2, subd.(a)(17) as well as that set forth in former section 190.2, subd.(d). Use of the special circumstances against the defendant did not result in cruel and unusual punishment. Moreover, the reference to the taking of "innocent life" in other U.S. Supreme Court cases did not limit the application of the special circumstances in the provocative act murder case.id: 16485
Felony-murder special circumstance can be applied to a provocative act murder case.Defendant argued the felony-murder special circumstance codified in Penal Code section 190.2, subd.(a)(17), does not apply to a provocative act murder case as a matter of law. However, the purpose of the provision is to punish a defendant who commits an enumerated felony that results in the death of another. Moreover, the language of the provision only requires that a murder be committed while the defendant was committing a specified felony.id: 16486
"Cooperative relationship" for purposes of former section 190.2, subd.(d), applies to the underlying felony not the killing.Former Penal Code section 190.2, subd.(d) provided a special circumstance for any person (not the actual killer) who acted recklessly or was a major participant in an enumerated felony that resulted in death. Defendant argued the provision did not apply in his provocative act murder case because there was no relationship between he and the actual killer. However, the cooperative relationship must occur in the underlying felony, not the killing.id: 16487
Murder-by-poison special circumstance does not violate the Eighth Amendment by repeating the elements of first degree murder-by-poison.Defendant argued the murder-by-poison special circumstance under Penal Code section 190.2, subd.(a)(19), violates the Eight Amendment by failing to narrow the class of eligible persons since it merely repeats the elements that render a homicide a first degree murder. However, the special circumstance does not repeat the elements of first degree murder-by-poison. The special circumstance allegation, unlike the definition of first degree murder-by-poison requires proof the defendant intentionally killed the victim. Moreover, first degree murder liability and special circumstance findings may be based on common elements without offending the Eight Amendment.id: 16410
Two beating theory supported robbery for felony murder and the special circumstance if defendant attacked the victim without the intent to steal, and then formed the intent and finished off the victim.The prosecutor urged the jury to convict defendant of felony murder and to find the robbery and burglary murder special circumstances true if it believed the two beating theory. Defendant argued the two beating theory was legally insufficient to establish the killing occurred in the course of a robbery. However, if defendant first attacked the victim without the intent to steal, and he then decided to steal and finished the victim off to achieve that goal, he was guilty of robbery.id: 16366
Torture-murder special circumstance does not require a causal relationship between the torture and the murder.Defendant challenged the torture-murder special circumstance finding on the ground the prosecution failed to establish a causal relationship between the intentional infliction of extreme pain and the murder. However, unlike Penal Code section 189, the torture-murder special circumstance does not require a causal relationship between the tortuous act and the death.id: 16284
Torture-murder special circumstance requires a causal relationship between the torture and the victim's death.Contrary to defendant's claim, the torture-murder special circumstance requires a causal relationship between the torture and the victim's death. Moreover, it was not reasonably likely that the jurors understood the instructions to permit a true finding on the torture-murder special circumstance based on acts of torture that had no connection to the murder.id: 16285
Where a defendant decides to kill, conceals himself, waits for the victim and takes him by surprise the murder is accomplished by means of lying-in-wait.Defendant located and retrieved the murder weapon, concealed himself from view between two trucks, and waited for the victims to come around a corner where he could take them by surprise. The time period involved was "substantial" for purposes of the lying-in-wait special circumstance.id: 16286
Defendant was a major participant in the robbery for purposes of the felony murder special circumstance despite the fact that he only received 20 percent of the loot.Defendant argued there was insufficient evidence that he acted as a major participant with reckless indifference to human life, as regained to support the special circumstance that the murder was committed in furtherance of the robbery. However, defendant and his partner, Vines, actively participated in the robbery. Defendant provided the gun to Vines who shot the victim. Defendant made no effort to attempt to assist the victim after the shooting. Moreover, defendant and Vines had committed a prior robbery recently and defendant knew of Vines' willingness to do violence. The fact that defendant received only 20 percent of the loot did not render him a minor participant.id: 16273
Drive-by shooting special circumstance is not facially invalid, and violates neither the Eighth Amendment nor substantive due process principles.Defendant argued the special circumstances established by Penal Code section 190.2, subdivision (a)(21), intentional murder by discharging a firearm from a vehicle with intent to kill was unconstitutional. However, the provision was not facially invalid in that it is overinclusive since the statute is not void for vagueness and defendant was not involved in the exercise of a constitutional right. Moreover, a sentence of life without possibility of parole for what theoretically could have been an unpremeditated murder is not excessive under the Eighth Amendment. The death penalty has been approved in drive-by shooting cases. Finally, the provision did not violate substantive due process under the Fourteenth Amendment since it is supported by the proper legislative purpose of reducing firearm carnage on the streets and the increased punishment for such conduct is rationally related to that broad purpose.id: 16274
Defendant's statements and the painful series of stab wounds demonstrated an intent to torture for purposes of the torture-murder special circumstance.Defendant argued there was insufficient evidence of the intent to inflict extreme pain for purposes of the torture-murder special circumstance. However, the trier of fact may find intent to torture based on all the circumstances surrounding the charged crime including the nature and severity of the wounds, and any statements made by the defendant. Defendant's post-crime statements to others indicated he refused to comply with demands made during the robbery. Moreover, the painful series of flank wounds can readily be viewed as one means by which defendant sought to compel the victim to open the safe. There was sufficient evidence of intent to torture.id: 16275
Evidence showed the murder was committed to facilitate the kidnapping for purposes of the kidnap-murder special circumstance and that the kidnapping was not merely incidental to the murder.Evidence supported the finding the murder was committed to facilitate the kidnapping. Even though defendant allowed six witnesses to the kidnapping to leave the camp, he killed the victim who he believed was the only witness who would go to the police. The victim had previously "snitched on" defendant and defendant did not want that repeated. Moreover, there was evidence to show defendant had not decided the victim's fate at the time of the asportation so that the kidnapping could not be considered "incidental" to the murder.id: 16276
Evidence supported arson-murder special circumstances where defendant had independent yet concurrent goals of setting the fire to avoid detection and to kill the victim.To prove the arson-murder special circumstance, the prosecution must show the defendant intended to commit arson and that the arson was not merely incidental to the murder. Contrary to defendant's claim, evidence showed defendant had a purpose for arson apart from the murder. The arson investigator testified the manner in which the fire was set showed an intent to conceal the rape and avoid detection, as well as an intent to kill the victim. This testimony showed the defendant harbored independent yet concurrent goals. Evidence was therefore sufficient to support the arson-murder special circumstance.id: 16277
Evidence supported murder to avoid arrest special circumstance where there was a direct connection between the perceived threat of imminent arrest and the murder.Defendant argued the evidence was insufficient to support a finding he murdered the victim to avoid lawful arrest and the court erred in refusing to modify the standard instruction to tell the jury the arrest must be imminent. However, evidence showed defendant did not want to get into trouble for possessing the stolen bicycle and the loaded weapon. When the victim said she was going to call the police, defendant said oh, no you arent and raised his gun. There was a direct connection between the perceived threat of imminent arrest and the murder, and the special circumstance finding was not based on mere speculation. In light of the strong showing that defendant feared imminent arrest, there was no need to modify the standard instruction.id: 16278
It is no defense to the killing in retaliation for testimony special circumstance that the victim was not an important witness.Defendant argued the special circumstance defined in Penal Code section 190.2, subd.(a)(10), did not apply to him because the plot to kill the detective commenced before the detective testified at the robbery trial, at a time when it was not clear that he would testify at that trial. However, it is no defense to the special circumstance that the victim was not an important witness, so long as one of the defendant's purposes was to prevent the witness from testifying.id: 16279
Special circumstance for killing an officer in retaliation for the officer's exercise of his official duties does not require the defendant believe the officer was acting lawfully.Penal Code section 190.2, subd.(a)(7) establishes a special circumstance where a police officer is killed in retaliation for that officer's exercise of his official duties. There is no basis for interpreting the portion of the special circumstance relating to retaliation to require that the defendant have a subjective belief that the officer was acting lawfully when he or she performed the duties for which defendant sought to retaliate.id: 16281
The corpus delicti rule in the case of felony-murder special circumstances applies only to the underlying felony itself.Defendant argued the corpus delicti rule as applied to the felony-murder special circumstances requires independent proof that the kill occurred in the commission of the underlying felony, and not just independent proof of the corpus delicti of the underlying felony. However, the rule does not require independent proof of the additional special circumstance element that the killing occur while the defendant was engaged in the commission of the underlying felony.id: 16282
The trial court did not err in refusing defendant's proposed instruction defining the scienter and participation requirements of the robbery-murder special circumstance allegation.Defendant argued the trial court erred in refusing his request to instruct the jury with a modified version of CALJIC 8.80.1, concerning the scienter and participation requirements of the robbery-murder special circumstance. However, contrary to defendant's claim, the CALJIC instruction did convey the subjective appreciation requirement. Moreover, the modified instruction was not needed for its proposed definition of major participant. The phrase is commonly understood and does not require a definition requiring a finding that defendant was a ring leader.id: 16283
Defendant's failure to recover the insurance proceeds after the killing did not establish the lack of a financial motive at the time of the killings for purposes of the financial gain special circumstance.Defendant argued the evidence was insufficient to support the financial gain special circumstance (Penal Code section 190.2, subd. (a)(1)) since he failed to recover on the life insurance policies. However, proof of actual pecuniary benefit to the defendant from the victim's death is neither necessary nor sufficient to establish the special circumstance.id: 15111
Prior Texas murder conviction qualified for the prior-murder special circumstance even though defendant would have been too young to be tried as an adult in California.A prior-murder special circumstance finding under Penal Code section 190.2, subd.(a)(2), may be based on an offense committed in another jurisdiction, if under the law as it was then, the defendant was too young to be tried as an adult in California.id: 15113
Witness-killing special circumstance applies where the victim is killed in retaliation for the act of testifying, regardless of the content of the testimony.The trial court erred in interpreting the retaliatory witness-killing special circumstance (Penal Code section 190.2, subd.(a)(10)) as applying only when the victim was killed for what he said while testifying and not for the mere act of testifying. The special circumstance applies where the witness/victim was killed in retaliation for the act of testifying, regardless of the content of his testimony.id: 15114
One who aids and abets a killing for the killer's financial gain is subject to the financial gain special circumstance.Defendant argued the instruction regarding the financial gain special circumstance was flawed because it improperly permitted the financial gain motive of the killer to be imputed to defendant who was charged under a derivative liability theory. However, one who aids or encourages a person in the deliberate killing of another for the killer's own financial gain is subject to the special circumstance punishment.id: 14280
Prior-murder-conviction special circumstance applies when defendant is convicted of murder only as an aider and abettor.Defendant argued that the prior-murder-conviction special circumstance is inapplicable were the defendant is convicted of murder on an aiding and abetting theory. However, Penal Code section 190.2, subd. (b) does not preclude a prior-murder-conviction special circumstance when the defendant is found guilty of murder only as an aider and abettor.id: 14281
Proof of corpus delicti is not required for the financial gain special circumstance.Defendant argued that the prosecution need prove victim was killed for financial gain independently of defendant's confession. However, if the special circumstance requires only proof of defendant's motive for the murder or some other matter which does not constitute a separate criminal offense, proof of the corpus delicti is not required.id: 14282
Provocative act murder was committed during an attempted robbery and consequently justified a special circumstance finding.Defendant argued the felony - murder special circumstance was applied erroneously because his first degree murder conviction was not for a felony-murder. However, the provocative act murder was committed while the defendant was engaged in the attempted commission of a robbery and consequently justified a special circumstance finding.id: 14283
Puncture wounds to neck and back established an intent to torture for purposes of the torture-murder special circumstance.Defendant argued the evidence was insufficient to demonstrate defendant intended to cause extreme pain. The careful binding and gagging of the victims was inconsistent with a theory that an explosion of violence occurred. The victim, while incapacitated, received several neck injuries (including puncture wounds and a longer, cutting wound) and back injuries (consisting of puncture wounds) caused by the knife. A number of these wounds were superficial cuts that were clearly not intended to be lethal but were meant instead to persuade a victim to write a check to defendant. Moreover, given their nature and placement, the wounds could not have been inflicted inadvertently.id: 14284
Rape-murder special-circumstance was proper where evidence showed appellant killed victim to prevent her identification of him as her rapist.Appellant argued that reversal of the rape-murder special-circumstance was required because there was insufficient evidence that appellant killed the victim in order to facilitate or advance the rape. He argued the evidence showed appellant went to the victim's home to rob her and raped her only as an afterthought. However, the evidence supported an inference that after defendant raped the victim, he realized she could identify him and he killed her to prevent her identification of him as the assailant. This evidence was sufficient to support the rape-murder special-circumstance.id: 14285
Requirement of constructive knowledge that murder victim was a peace officer was not unconstitutional.The special circumstance of peace-officer murder requires that defendant intentionally killed a person he knew or should have known was a peace officer engaged in the performance of his duties. (Penal Code section 190.2, subdivision (a)(7)). The standard of constructive knowledge was not unfair and was not vague and overbroad.id: 14286
Requirement of corroboration of accomplice testimony does not apply to financial gain special circumstance.When a special circumstance requires proof of another crime, that crime cannot be proved by the uncorroborated testimony of an accomplice. But when it requires only proof of the motive for the murder for which defendant has already been convicted, the corroboration requirement of Penal Code section 1111 does not apply.id: 14287
Specific intent finding was not required for the kidnapping and sodomy special circumstances.Defendant argued that to find special circumstances of felony-murder kidnapping and felony-murder sodomy true, the jury must determine that there was specific intent even though sodomy and kidnapping are general intent crimes. However, a finding of specific intent is not required for the felony-murder special circumstance.id: 14288
That the victim was generally aware of defendant's presence did not negate the concealment element of the lying-in-wait special circumstance.Defendant argued the lying-in-wait special-circumstance finding was invalid because there was no evidence that defendant struck his victim from a place of hiding. The evidence indicated that the codefendants lured victim to an isolated location on a pretext, and that defendant then watched and waited for an opportunity to ambush the victim from a position of advantage. That the victim was generally aware of defendant's presence did not negate the element of concealment.id: 14289
The prosecutor did not misstate the law by arguing the stabbing alone constituted torture for purposes of the torture murder special circumstance.Defendant argued the prosecutor misstated the law by arguing that the stabbing alone, without impalement by the stake while the victim was alive, constituted torture. However, the prosecutor properly argued the vicious beating and knife wounds endured by the victim while she was alive and struggling with her attacker would support a finding of torture.id: 14291
Throwing a destructive device constitutes delivery within the meaning of the special circumstance provision.Appellant argued there was insufficient evidence he delivered a destructive device within the meaning of Penal Code section 190.2, subd. (a)(6). He claimed that delivered does not include throwing and therefore the evidence was insufficient to support the special circumstance finding. However, within the meaning of section 190.2, subd. (a)(6), delivers, includes throwing.id: 14292
Torture-murder special circumstance instructions failed to explain the requirement of proof of an intent to inflict extreme pain.The trial court's instructions regarding the torture- murder special circumstance were flawed because, unlike the torture-murder instructions themselves, they failed to explain that proof of an intent to inflict extreme pain was required to sustain such a finding. However, the torture-murder special circumstance finding was sustained on the basis that, as instructed, the jury necessarily found an intent to cause extreme pain when it found defendant guilty of torture murder.id: 14293
Torture-murder special circumstance does not require a causal relationship between torture and death.Defendant argued the prosecution failed to establish a causal relationship between the acts of torture and death. However, the special circumstance does not require that there be a causal relationship between the torture and the victim's death.id: 14294
Witness-killing special circumstance requires a finding that the victim was killed to prevent his testimony.Defendant argued that the witness-killing special circumstance of Penal Code section 190.2, subdivision (9)(10) should be read to require the jury to find that but for the intent to prevent the witness from testifying, she never would have been killed. He argued this would ensure that the special circumstance is not improperly enlarged to encompass one who kills when the elimination of the witness is merely incidental to the crime. The plain meaning of the provision is sufficiently limited. The trier of fact must find that the victim was killed for the purpose of preventing his testimony.id: 14298
Court was not required to instruct jury need find financial gain was the dominant motive for special circumstance.Fixing on the dual character of the motive alleged by the prosection for the murder - eliminating the chief obstacle to the relationship between defendant and the victim's daughter and acquiring the principal assets of the victim's estate - defendant argued the court erred in failing to instruct the jury to require that the financial gain motive was dominant. However, defendant either had an expectation of financial benefit at the time of the killing or he did not. No further finding was required.id: 14249
Court was not required to instruct that before the jury could find the financial gain special circumstance true it had to find defendant possessed the required intent at the time of the killing.The trial court was not required to instruct sua sponte that before the jury could find the financial gain special circumstance true, it had to find that defendant possessed the required intent at the time of the killing.id: 14250
Court was not required to instruct that in finding the witness-murder special circumstance true the jury must find the predominant purpose of the murder was to prevent the victim's testimony.The trial court instructed the jury that in order to find the witness-murder special circumstance true, they must find, inter alia, that the witness was intentionally killed for the purpose of preventing her testimony in a criminal proceeding. Defendant argued the court erred in failing to instruct sua sponte that in order to find the special circumstance true, they must find the <U>predominant</U> purpose of the murder was to prevent the testimony. However, the court correctly instructed in the language of the statute.id: 14251
Defendant subjected himself to the financial gain special circumstance notwithstanding that he had no contact with the actual killer.Evidence established that defendant solicited and procured the killing. He argued that the financial gain special circumstance only applies where the hirer directly aids and abets the actual killer and that there was no evidence that he aided and abetted the hit-man, as opposed to the intermediary. However, defendant's contact with the intermediary subjected him to the special circumstances allegation.id: 14252
Evidence of forcible strangulation and numerous hammer and stab wounds supported finding of intent to inflict extreme pain for torture murder special circumstance.Evidence of the premeditated and prolonged assault, the unusually forcible strangulation attempt, the numerous hammer and stab wounds, the rape, and defendant's earlier statement that he intended to hurt and strangle a girl, was sufficient to sustain the jury's implied finding of intent to inflict extreme pain.id: 14254
Evidence of knife wounds to the neck and back established the infliction of extreme pain for purposes of the torture-murder special circumstance.Defendant argued the prosecution failed to produce evidence demonstrating that the five wounds claimed to have been torturous would have caused the victim extreme pain. The forensic pathologist testified the knife injuries to the neck and lower back would have caused pain but she did not testify expressly that the victim suffered extreme pain. Nonetheless, the forensic pathologist's testimony, considered with the photographs of the injuries themselves and of the victim's facial expression, amply supported the jury's determination that the victim suffered extreme pain.id: 14255
Evidence supported lying-in-wait special circumstance where defendant drove alongside the victims until they reached a particularly vulnerable area and shot them.Defendant drove alongside the victims where there were no witnesses and where they would be most vulnerable. While they were completely unsuspecting, he called to them so they would look his way and became live targets. After gaining this position of advantage, he shot and killed. He did not shoot when he immediately saw them, but waited until they reached the place of maximum vulnerability. A matter of minutes elapsed between the time defendant first saw them until he shot them. The evidence was sufficient to support the lying-in-wait special circumstance.id: 14256
Evidence supported the felony-murder special-circumstance where it showed defendant intended to rob and then kill the victim.Defendant argued the felony-murder special-circumstance was improper because the robbery was merely incidental to the murder. However, the evidence supported the inference that defendant intended to kill the victim and then steal her money and jewelry. The likely reason defendant fled without completing the robbery was the he knew the victim's daughter had telephoned the police.id: 14257
Evidence supported the finding of intent to kill for purposes of the lying-in-wait special circumstance despite the evidence of his intent to first commit rape.Defendant argued the evidence did not support the lying-in-wait special circumstance because the evidence showed only an intent to rape, not to kill, at the time of the lying-in-wait. Although defendant no doubt intended to rape, the two intents were not mutually exclusive. Based on defendant's subsequent actions in killing the victim - almost immediately, and the other occasions in which he both raped and killed, the jury could reasonably find that at the moment of the attack defendant had a dual intent, to rape first, then kill.id: 14258
Evidence supported the lying-in-wait special circumstance where defendant he ordered a pizza to his motel room and waited to rob and murder the delivery boy.Defendant argued the evidence was insufficient to sustain the lying-in-wait special circumstance finding. Evidence showed defendant purchased a clothesline and knife, then rented a motel room, telephoned the Domino's Pizza parlor, and lured the delivery boy to the motel room on the pretext of ordering a pizza, concealing his true intent to rob and murder him. Defendant overpowered the victim, bound him with clothesline, gagged him and left him either dead or to drown in the bathtub full of water. That defendant did not conceal his presence in the motel room from the victim did not negate the element of concealment. Moreover, the watchful element was satisfied where defendant ordered the pizza and waited. It did not matter that he did not watch the victim leave the Domino's and drive to the motel.id: 14259
Evidence supported the robbery special circumstance finding notwithstanding the failure to convict on the underlying robbery.Defendant was convicted of murder with robbery and financial gain special circumstances. He argued that because he was not convicted of robbery, the evidence was insufficient to support the robbery special circumstance. However, the law does not require a conviction of the underlying offense for the special circumstance to stand. Moreover, in the instant case appellant was not acquitted of the robbery, in fact, 11 jurors voted to the contrary.id: 14260
Evidence supported the special circumstance finding that the murder was committed to prevent lawful arrest where defendant had threatened to shoot police and was lawfully stopped by the victim officer.Defendant argued the evidence was insufficient to support the jury's special circumstance finding that the murder was committed for the purpose of preventing lawful arrest. However, defendant stated more than once that he was not going back to jail and would shoot any police officer who stopped him. Moreover, defendants were detained by the police officer victim under circumstances which would have led them or any objective observer to believe that an arrest was highly likely. The arrest was or appeared to be imminent for purposes of the enhancement.id: 14261
Failure to mention the intent to torture requirement in the torture-murder special circumstance instructions was harmless where the prosecutor detailed the requirement in his closing argument.Defendant argued that the torture special circumstance finding had to be reversed where the court did not instruct the jury on the intent to torture. Although the instruction given did not explicitly state that the infliction of torture element of the special circumstances included a requirement of an intent to inflict cruel pain, the error was harmless. The intent to torture requirement was explicitly set forth in the instruction on first degree torture murder and reiterated in the prosecutor's closing argument.id: 14264
Failure to specifically inform the jury that infliction of torture included an intent to torture was not prejudicial where other instructions covered the subject and evidence established an intent to torture.Defendant argued the trial court erred in failing to instruct the jury that in order to find the special circumstance charged under Penal Code section 190.2, subd. (a)(18) (murder involving torture), to be true, it had to determine that defendant possessed the intent to torture the victim. However, the first degree torture murder instruction specifically informed the jury that an intent to cause cruel pain and suffering was a required element. Moreover, there was ample evidence to establish that defendant intended to torture his victim, did so while she was still alive, and intended to kill her.id: 14265
Financial gain special circumstance may not be based solely on a robbery.Submitting the financial gain special circumstance allegation to the jury was erroneous because the allegation was based solely on the robbery. There was no evidence that the victim's death was the consideration for, or an essential prerequisite to the financial gain sought by defendant.id: 14266
Financial gain special circumstance was supported by the evidence where defendant received $842,000 in life insurance proceeds following the murder of his wife.Evidence supported the financial gain special circumstance as defendant cashed $842,000 in life insurance proceeds from the murder of his 23 year-old wife. It is true that the murder occurred after a previous life insurance policy had lapsed and before another could be approved, but that was for the jurors to digest.id: 14267
Jury need not be instructed that the murder had to be carried out exclusively for financial gain in order for it to qualify under section 190.2, subdivision (a)(1).Contrary to defendant's claim, the jury need not be instructed that the murder had to be carried out exclusively for financial gain in order for it to qualify under the financial gain special circumstance under Penal Code section 190.2, subdivision (a)(1). CALJIC 8.81 accurately reflects the mandate of the special circumstances provision that anyone who intentionally commits murder for purposes of financial gain should be eligible for the death penalty or life imprisonment without possibility of parole.id: 14268
Kidnapping could not be said to be merely incidental to the murder where it could be inferred the intent to kill was formed after the asportation.Defendant argued that the kidnapping of Laurie and Jeanine was incidental to the latter's murder and had no felonious purpose independent of defendant's intent to kill, so that the kidnap-murder special circumstance was invalid. However, defendant did not immediately dispose of the victims once he had them in the trunk of his car, but brought them to his home. He may have been undecided about their fate at that point. It could reasonably be inferred that defendant formed the intent to kill after the asportation, so that the kidnapping could not be said to be merely incidental to the murder. Moreover, concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance.id: 14269
Killing a viable fetus is murder for multiple murder special circumstances.Killing of a viable fetus is murder within the meaning of the multiple murder special circumstance.id: 14270
Lying in wait special circumstances does not require that the initial assaults be proven lethal as long as there is no cognizable interruption between the watchful waiting and the continuous assault causing death.Defendant was convicted of the torture murder of a victim and the jury found true the special circumstance allegations that the murder had been perpetrated while lying in wait, and by torture. He argued that because the lethal acts of strangulation which rendered the victim's life were preceded by hours of non-lethal action, the special circumstance of lying in wait did not exist as a matter of law. However, the jurors could reasonably conclude the lethal acts commenced immediately with the victim's capture and that they flowed continuously through the interrogation and assaults including the kicking in the ribs, kneeing in the face, the tugging with the electrical cord around the neck, the stomping on the stomach and the attempts to break his neck. There is no requirement that the initial assaults be proven lethal.id: 14271
Multiple murder special circumstance does not require a finding that each murder was in the first degree.Defendant argued the special circumstance findings had to be set aside because the jury did not make a special finding in its verdict that each of the multiple murders was in the first degree. However, on its face, Penal Code section 190.2, subdivision (a)(3) is satisfied by a finding of multiple murder in the first or second degree.id: 14272
Murder committed in Alabama when defendant was 16 was properly used to support the prior-murder special circumstance.Defendant argued that use of his Alabama murder conviction (committed when he was 16 years old) to support the prior-murder special circumstance was improper under Penal Code section 190.2 subdivision (a)(2) and denied him equal protection. Had defendant committed the murder in California at the age of 16, it would have been possible for him to have been convicted as an adult. The offense thus would be punishable as a murder if committed in California within the meaning of section 190.2 subdivision (a)(2). Moreover, as long as the guilt ascertainment process in the foreign jurisdiction is not constitutionally flawed there is no equal protection bar against treating a murder from a foreign state in the same manner as a California conviction for the same offense.id: 14273
Murder for financial gain special circumstance applies where an innocent bystander is killed and the intended victim survives.Persons who kill in order to prevent discovery of embezzlement committed by one of those persons can be convicted of murder for financial gain even if a bystander is killed but the intended victim survives.id: 14274
Murder for purposes of eliminating a business competitor supports the murder for financial gain special circumstance.Evidence established that Frazier, defendant's competitor in the drug market, had made $2,000 the previous day selling drugs. Defendant was upset at Frazier's presence and at the amount of money he had made. The evidence also showed that defendant expected that he would benefit financially from the elimination of his competitor from the market. 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).id: 14275
Murder in the course of kidnapping special circumstance does not require a finding of both simple kidnapping and aggravated kidnapping.Defendant argued the trial court erred in instructing the jury that kidnapping in violation of Penal Code section 207 was sufficient to support a finding of the special circumstance of murder in the course of kidnapping. He claimed the special circumstance required that the kidnapping violate both section 207 (simple kidnapping ) and section 209 (aggravated kidnapping). However, either form of kidnapping suffices for invocation of the death penalty.id: 14276
Murder of a witness special circumstance does not only apply to eyewitnesses.The trial court did not err in failing to instruct the jury that the special circumstance of murder of a witness under Penal Code section 190.2, subdivision (a)(10), is applicable only where the victim was an eyewitness to a prior crime.id: 14277
No criminal proceedings need be pending to support a witness-killing special circumstance.There need not be a pending criminal proceedings at the time of the killing before a jury may sustain a witness-killing special circumstance under Penal Code section 190.2, subdivision (9)(10).id: 14278
Officer who had properly detained defendant was acting lawfully for purposes of the peace officer - murder special circumstance.As used in the peace officer - murder special circumstance, the phrase engaged in the performance of his or her duties means the officer must have been acting lawfully at the time. The instant victim was acting lawfully as he was called to the scene to investigate a problem. While he may not have had probable cause to arrest the defendant, he had reasonable suspicion in view of defendant's apparent drug intoxication to detain him for purposes of investigation.id: 14279
1980 Texas murder that included all of the elements of second degree murder in California qualified for the prior murder special circumstance.Defendant's 1980 Texas murder conviction was for an offense which, under Texas law, included all of the elements of second degree murder as defined by California law, and therefore, constituted a prior murder conviction within the meaning of Penal Code section 190.2(a)(2).id: 14241
A hearing where the magistrate takes oral testimony in lieu of a written affidavit is a criminal proceeding for special circumstance purposes.Defendant argued the killing-in-relationfor-testimony special circumstance is inapplicable where the victim gave an oral statement under oath in lieu of a written affidavit in support of a search warrant. However, a hearing before a magistrate to obtain a search warrant is a criminal proceeding within the meaning of the Penal Code section 190.2, subdivision (a)(10) special circumstance, regardless of whether the hearing takes place before or after commencement of a criminal action.id: 14242
A person who agrees to kill for drugs is subject to the financial gain special circumstance.Defendant argued the evidence did not support the financial gain special circumstance because the killer received drugs rather than money in exchange for his agreement to kill the victim. However, it makes no difference whether the coin of the bargain is money or something else of value, it remains a calculated hiring to commit murder.id: 14243
Actual physical concealment is not an element of lying-in-wait.The jury was properly instructed on the concealment element of the lying-in-wait special circumstance. 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 back seat while the car was being driven to a more isolated area, and his sudden surprise attack, from behind and without warning, on victim. Moreover, defendant's lethal acts flowed continuously from the moment he commenced his surprise attack and thus, there was no cognizable interruption which would preclude use of the lying-in-wait special circumstance.id: 14244
An officer executing a facially valid warrant is lawfully engaged in duty notwithstanding that the facts before the magistrate failed to establish probable cause.The special circumstance with which appellant was charged was the killing of a peace officer engaged in the performance of his duties. Appellant argued that since the search the officer was conducting was illegal (not supported by probable cause), he was not engaged in the performance of his duties. However, if a warrant is valid on its face, an officer carrying out its command to search or arrest is lawfully engaged in duty, and his attacker may be convicted and punished on that basis, even if the facts disclosed to the magistrate in support of the warrant were not legally sufficient to establish probable cause.id: 14245
Court erred in dismissing the lying-in-wait special circumstance where evidence supported an inference that defendant sat in the back seat in order to ambush victim.Testimony established that before defendant left the house, he told his companion they would have to get rid of victim. When he got into the car, defendant positioned himself in the back seat immediately behind the victim. His later use of a cord and tire jack to kill her supported an inference he brought or arranged the murder implements in advance of his opportunity to use them. Defendant ambushed victim by a surprise attack from behind. Evidence supported an inference he used his opportunity to position himself behind the victim and wait to take her unawares and obtain the advantage of surprise. The court erred in dismissing the alleged lying-in-wait special circumstance.id: 14246
Court need not specifically instruct sua sponte that motive is an element of the financial gain special circumstance.Defendant argued the trial court erred in failing to specifically instruct the jury that motive is an essential element of the financial gain special circumstance. However, the language of the statute carried out for financial gain implies motive.id: 14248
Evidence supported the finding of intent to rape for the attempted rape special circumstance where victim's body was found in a position suggesting rape and defendant's body hair was found in her clothing.Evidence supported the jury's finding of intent to rape. The victim's body was found in a position and state of dress suggestive of rape or sexual assault. Body and pubic hairs similar to defendant's, and unlike those of others possibly involved in the crimes, were found in the victim's panties, pajama top and socks. The jury could rationally conclude defendant partially unclothed himself and the victim for the purpose of sexual intercourse.id: 9954
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245