Section 221 | CALCRIM (Jury Instructions)

(1994) 8 Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012), Defenses, § 2.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.03[1], Ch. 85, Submission to Jury and Verdict, § 85.02[1A][a],
[2][a][i] (Matthew Bender).
CALCRIM No. 221
POST-TRIAL: INTRODUCTORY
48

(iii)
Special Circumstances With Prior Murder
750. Special Circumstances: Prior Murder Conviction (Pen. Code,
§ 190.2(a)(2))—Trial on Prior Murder (Pen. Code, § 190.1(a) & (b))
The defendant is charged with the special circumstance of having been
convicted previously of murder. You must now decide if the People have
proved that this special circumstance is true.
To prove that this special circumstance is true, the People must prove
that the defendant was convicted previously of murder in the (first/
second) degree.
[A conviction of
<insert name of offense from other state> is
the same as a conviction for (first/second) degree murder.]
[In deciding whether the People have proved this special circumstance,
consider only the evidence presented in this proceeding. Do not consider
your verdict or any evidence from the earlier part of the trial.]
[You may not return a finding that this special circumstance has or has
not been proved unless all 12 of you agree on that finding.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The court must bifurcate trial on this special circumstance from
trial on the other charges unless the defendant specifically waives bifurcation. (Pen.
Code, § 190.1(b); Curl v. Superior Court (1990) 51 Cal.3d 1292, 1302 [276
Cal.Rptr. 49, 801 P.2d 292].)
The court must also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial
and CALCRIM No. 3550, Pre-Deliberation Instructions.
If the defendant has waived bifurcation, the court should give paragraphs one and
two. The court may also give paragraph three if appropriate. The remainder of the
instruction should not be given.
“The jury sitting as trier of fact must determine ‘the truth of’ the prior
conviction—i.e., the fact that defendant was previously convicted of first or second
degree murder.” (Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301 [276 Cal.Rptr.
49, 801 P.2d 292].) The court must determine the validity of the prior conviction.
(Id. at p. 1302.) For an out-of-state prior, the court must determine whether the
elements of the offense for which the defendant was convicted satisfy the elements
of first or second degree murder in California. (People v. Martinez (2003) 31 Cal.4th
493

has served a prior prison term for first or second degree murder. (Pen. Code,
§ 190.05(a).) The statute requires the jury to find the fact of the conviction true
beyond a reasonable doubt. (Pen. Code, § 190.05(c), (d).) The statute does not
require