Bolter

Defendant Duke Kimberly Bolter, an inmate at Pelican Bay State Prison (PBSP), is charged with the murder of fellow inmate William Stanton Boyd. The trial court granted defendant’s Penal Code section 995 motion as to one of three alleged special circumstances, and dismissed the charge under section 190.2, subdivision (a)(10), that the victim was a witness to a crime and was intentionally killed in retaliation for his testimony in a criminal proceeding. 1 The People appeal the dismissal of the special circumstance. (See § 1238, subd. (a)(1).) We stayed trial on the remaining charges pending determination of this appeal.

In a question of first impression, the trial court interpreted the retaliatory-witness-killing special circumstance as applying only when the victim was killed for what he said while testifying and not for the mere act of testifying. We agree with the People that this interpretation cannot be reconciled with the purpose of the statute or the existing interpretation of the more commonly invoked portion of this special circumstance, which is the killing of a witness to a crime to prevent him or her from testifying. In our view, the evidence need only show…