California Penal Code Section 190.2(A)(10) - Interpretation

Section 190.2, subdivision (a)(10) provides: "The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. . . ." The statute can be violated in two ways. the accused can kill a witness to a crime: (1) to prevent him or her from testifying, or; (2) in retaliation for his or her testimony. There is case law interpreting the former but not the latter. As to the killing of a witness to prevent his or her testimony, our Supreme Court has held the special circumstance applicable regardless of whether the witness can be characterized as a percipient witness, an eyewitness, or an important witness. So long as one of the motives of the killer was to prevent the victim/witness from testifying, it is immaterial what role he or she would have ultimately played in that future criminal proceeding. ( People v. Stanley (1995) 10 Cal. 4th 764, 800-801 42 Cal. Rptr. 2d 543, 897 P.2d 481; People v. Jones (1996) 13 Cal. 4th 535, 550 54 Cal. Rptr. 2d 42, 917 P.2d 1165; and People v. Jenkins (2000) 22 Cal. 4th 900, 1018 95 Cal. Rptr. 2d 377, 997 P.2d 1044.) In People v. Jones, supra, 13 Cal. 4th at page 550, the defendant killed his girlfriend because he feared she would testify against him concerning the murder of a neighbor. (Id. at pp. 538-539.) The defendant claimed that " 'witness to a crime' " must be interpreted as meaning " 'eyewitness.' " ( Id. at p. 550.) The court disagreed, stating "nothing in the language of the applicable special circumstance or in our decisions applying this special circumstance supports the suggestion that the special circumstance is confined to the killing of an 'eyewitness,' as opposed to any other witness who might testify in a criminal proceeding." (Ibid.) In People v. Jenkins, supra, 22 Cal. 4th at page 1018, the defendant was charged with killing a police detective in retaliation for his testimony in a criminal proceeding. The defendant claimed that section 190.2, subdivision (a)(10) was inapplicable because the plot to kill the detective commenced before the detective testified and because he was not an important witness in the criminal proceeding. The court rejected the claim, noting that the evidence of the plot to kill the detective to prevent his testimony was sufficient to invoke the special circumstance. The provision "is applicable if defendant believes the victim will be a witness in a criminal prosecution, whether or not such a proceeding is pending or about to be initiated. It is no defense to the special circumstance allegation that the victim was not an important witness in the criminal proceeding, so long as one of the defendant's purposes was to prevent the witness from testifying." (22 Cal. 4th at p. 1018.)