F 3.31.5

F 3.31.5 n1 Concurrence Of Act And Mental State Is An Element Of The Charge.

It is a “fundamental doctrine of criminal law” that in every crime there must be a concurrence of act and intent. (PC 20; People v. Green (80) 27 C3d 1, 53 [164 CR 1].) “The scienter for any crime is inextricably linked to the proscribed act or omission. [Citation to PC 20].” (People v. Sargent (99) 19 C4th 1206, 1222 [81 CR2d 835].) “So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.” (fn. omitted) (People v. Vogel (56) 46 C2d 798, 801 [299 P2d 850]; see also Green at 53.) The element of joint operation of act and intent requires that any specific intent or mental state required by a penal statute concur with the actus reus of the crime. (See People v. Hernandez (64) 61 C2d 529, 532 [39 CR 361].) To avoid confusion the court should include the concurrence element when giving CJ 3.31.5. (See People v. Cleaves (91) 229 CA3d 367, 381 [280 CR 146].)

Because concurrence is an element of the charge, failure to instruct on this principle violates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments.) (See FORECITE PG VII.)

NOTE: As recommended by FORECITE, CALJIC has modified the 1988 version of CJ 3.31.5 to require concurrence of act and mental state. (See CJ 3.31.5 (1992 Revision).) However, appellate issues may still be cognizable in cases which used the unrevised version of CJ 3.31.5.

F 3.31.5 n2 Mental State — Intoxication To Negate Malice.

ALERT: The legislature has amended PC 22 to preclude the use of intoxication to negate implied malice. (See FORECITE F 8.47b.)

It its July 1994 pocket part, CJ suggested that CJ 3.31.5 should be used when the jury is required to determine whether evidence of intoxication negated implied malice. While CJ 3.31.5 certainly should be given in such a case, it is not an instruction which pinpoints the relationship of intoxication to implied malice. In fact, CJ 3.31.5 doesn’t even mention intoxication. Rather, CJ 4.21 is the more appropriate standard instruction to use when pinpointing intoxication and a mental element of the charge.

F 3.31.5 n3 Act-Intent/Mental State Concurrence: Standard Of Prejudice.

(See FORECITE F 3.31 n3.)