Return to CALJIC Part 3-4 – Contents
F 4.71 n1 CJ 4.71 Improper If Defense Relies On Alibi.
CJ 4.71 is improper if the evidence fixes commission of the offense at a particular time and the defendant presents an alibi defense as to that time. (People v. Jones (73) 9 C3d 546, 557 [108 CR 345]; comment to CJ 4.71.) In People v. Seabourn (92) 9 CA4th 187, 192-93 [11 CR2d 641], the court held that it is error to give CJ 4.71 per Jones even if CJ 4.50 on alibi was also given.
F 4.71 n2 Time of Crime: Effect Of Accusatory Pleading And Proof.
The precise time of a crime need not be included in the accusatory pleading unless the time is a material ingredient of the offense. (PC 955; People v. Jennings (91) 53 C3d 334, 358 [279 CR 780].) Hence even if a specific time or date is alleged, any variance between pleading and proof is not fatal unless the defendant presents an alibi defense or is misled. (People v. Cox (68) 259 CA2d 653, 660-61 [66 CR 576].)
F 4.71 n3 Time of Crime: Request For Continuance Necessary To Preserve Variance Issue.
Even if the defendant is misled, a motion for continuance is necessary to preserve the issue for appeal. (People v. Cox (68) 259 CA2d 653, 661 [66 CR 576]; see also Gray v. Netherland (96) 518 US 152 [135 LEd2d 457; 116 SCt 2074] formal request for continuance required to preserve lack of notice claim regarding prosecution evidence].)
F 4.71 n4 Specification of Distinction Between CJ 4.71 and CJ 4.71.5.
In cases where the charges include some counts alleged to have occurred “on or about” a certain date and other counts which are alleged to have occurred “on and between” a certain date, CJ 4.71.5 and CJ 4.71 should be modified to reference the specific counts to which each instruction applies. In this manner, it can be assured that there will be no juror confusion as to application of the correct rule to the correct charge.
