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People v. Wiley10/4/1976
!--REF-->34 Cal. 2d at 77.) It is suggested that this language with the sentence next following in Tubby establish that pain felt by the victim is a necessary element of torture-murder. The sentence in question recited that: "The Colorado Supreme Court has declared in similar terms that as an essential of torture physical pain must be inflicted as a means of persuasion, punishment or in revenge." However, the question before the court in Tubby was not whether pain was a necessary element of torture-murder, but whether the appellant was shown to have had the intent to cause pain. We explained: "In determining whether the murder was perpetrated by means of torture the solution must rest on whether the assailant's intent was to cause cruel suffering on the part of the object
of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death." (Id.) (See also, People v. Daugherty (1953) 40 Cal. 2d 876, 898 [256 P.2d 911]; People v. Martinez (1952) 38 Cal. 2d 556, 561 [241 P.2d 224]; People v. Cooley (1962) 211 Cal. App. 2d 173, 205 [27 Cal. Rptr. 543].)
Most recently we had occasion to review a conviction of first degree murder predicated on torture in People v. Steger, supra, 16 Cal. 3d 539. In holding the evidence of intent to inflict pain insufficient to support the verdict on that theory we again emphasized that "it is not the amount of pain inflicted which distinguishes a torturer from another murderer, as most killings involve significant pain. [Citation.] Rather, it is the state of mind of the torturer -- the cold-blooded intent to inflict pain for personal gain or satisfaction. . . . hold that murder by means of torture under section 189 is murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain." (16 Cal. 3d at p. 546.)
We adhere to these holdings. Attempts to measure the amount of pain, if any, suffered by victims of torturous acts, some of whom like William, may have been rendered insensitive to pain by alcohol or drugs, others of whom mercifully may have been quickly rendered unconscious at the outset of the homicidal assault, not only promises to be futile, but are unnecessary. The Legislature did not make awareness of actual pain an element of torture-murder. Although it has been assumed in past opinions in torture-murder cases that the victim probably felt pain, it does not follow that awareness of pain is an element of the offense. The murderer who exhibits "the cold-blooded intent to inflict pain for personal gain or satisfaction" may not assert the victim's condition as a fortuitous defense to his own deplorable acts. The challenged instruction correctly states the elements of murder by torture.
II
Instructions on Circumstantial Evidence
Appellant also contends that the trial court committed prejudicial error in failing to instruct the jury, sua sponte, on the effect to be given circumstantial evidence. She argues that because there was no evidence that she struck the fatal blow, and because proof of the mental elements of murder in this case involved a substantial amount of circumstantial evidence, the court should have instructed the jury in the language of CALJIC No. 2.01 that: "You are not permitted to find the defendant guilty of the crime charged against him based on circumstantial evidence unless the proved circums
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