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witness-killing special circumstance was that “the witness was intentionally killed for the purpose of preventing his testimony in a criminal proceeding” were inconsistent.  Because motive and purpose are closely related concepts, defendant argues, the jury may have been misled into believing that the special circumstance allegation need not be proven.

We disagree.  The instructions were not inconsistent, as CALJIC No. 2.51 referred to “the crime charged,” i.e., murder, and not to the special circumstance allegation.  Even allowing for misunderstanding on that particular point, it was not reasonably likely (People v. Frye, supra, 18 Cal.4th at p. 958) that the jurors would have been misled in the manner defendant suggests, as they were repeatedly and expressly instructed to find the special circumstance allegation true only if each element, including the purpose of preventing the victim’s testimony, was proved beyond a reasonable doubt.21  The instructions, taken as a whole, did not deprive defendant of a fair trial or a reliable penalty determination.

XXII.  Instruction Defining Reasonable Doubt

Defendant contends that CALJIC No. 2.90, as given, unconstitutionally lessened the standard of proof beyond a reasonable doubt because it used the phrases “moral certainty,” “moral evidence,” and “abiding conviction.”  We have repeatedly rejected this contention (see, e.g., People v. Seaton (2001) 26 Cal.4th 598, 668; People v. Hines, supra, 15 Cal.4th at p. 1051; People v. Ray (1996) 13 Cal.4th 313, 347; People v. Freeman (1994) 8 Cal.4th 450, 501-505) and have been given no reason to reconsider those decisions here.

21 See CALJIC Nos. 8.80 (special circumstance must be proven beyond a reasonable doubt), 8.81.10 (elements of special circumstance; each must be proved), 8.83 (each fact upon which inference of special circumstance’s truth rests must be proved beyond a reasonable doubt), 8.83.1 (circumstances showing mental state for special circumstance must be proved rationally irreconcilable with absence of mental state).  

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