CALCRIM No. 703 should not have been given in case where intent to kill kidnapping (Pen. Code, § 190.2, subd. (a)(17)(M)) was the only felony-murder special circumstance on which the jury was instructed, but the error was harmless. Odom was convicted of the first degree murder and torture of a man she thought stole a PlayStation from her. The jury found true two special circumstances, kidnapping with intent to kill and intentional murder involving the infliction of torture. The trial court imposed an LWOP sentence. On appeal, Odom claimed the kidnapping special circumstance instruction erroneously allowed a finding based on reckless indifference to human life, rather than intent to kill. Held: Affirmed. Penal Code section 190.2, subdivision (a)(17)(B) provides a special circumstance where the murder was committed while the defendant was engaged in, or was an accomplice to, the commission or attempted commission of kidnapping. There are two different kidnapping special circumstances, one that requires intent to kill (§ 190.2, subd. (a)(17)(M)) and one that may be proved by showing that the defendant acted with reckless indifference to human life (§ 190.2, subd. (a)(17)(B)). Here, the jury was only instructed with the intent to kill version of the kidnapping special circumstance (CALCRIM No. 731). The jury was also instructed with CALCRIM No. 703, which sets forth the special circumstance intent requirements for accomplices to a felony murder and states that the jury must find the defendant acted with intent to kill or with reckless indifference to human life and was a major participant in the felony. This instruction was incorrect because the jury here was only instructed on intent to kill kidnapping. However, the error was harmless because the torture special circumstance required the jury to find that Odom had the intent to kill.

Defendant’s torture conviction is supported by substantial evidence. Odom claimed the beating death of the victim reflected an explosion of violence, not a cold and calculated attempt to inflict prolonged pain. Further, she claimed the evidence did not support a finding she specifically intended to inflict cruel or extreme pain or suffering. The evidence of torture was sufficient. Penal Code section 206 defines torture to include any person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose, inflicts great bodily injury upon the person of another. The victim was lured to Odom’s house, ambushed and beaten and kicked for 45 minutes. He was hog-tied and left bleeding to death in a room for hours before being shot. Torture does not require a specific modality, only the intent to cause cruel pain and suffering, for one of the purposes listed in section 206, here, revenge. There was ample evidence of the requisite intent.

Defendant’s conviction for torture special circumstance is supported by substantial evidence. Odom claimed the torture special circumstance was unsupported because there was no evidence she intended to kill the victim when the beating was inflicted. Section 190.2, subdivision (a)(18) provides a special circumstance where a first degree murder was intentional and involved the infliction of torture. However, there is no requirement that the act of torture supporting a special circumstance finding caused the victim’s death. Torture can consist of a course of conduct and the intent to kill need not be conjoined with every act within that continuum. There was ample evidence from which the jury could find the victim was tortured over a sustained period of time and that Odom formed the intent to kill during the beating.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A140281.PDF