PG VII(I)(b) Grounds For All CasesBCapital and Non-Capital
TABLE OF CONTENTS
CG 3.1 Elements
CG 3.1.1 Prosecution Must Prove Every Element Of Special Circumstance
CG 3.2 Directed Verdict On Element
CG 3.3 Directed Verdict On Essential Factual Issue
CG 3.4 Erroneous, Conflicting And/Or Contradictory Instructions On Elements
CG 3.5 Failure To Fully, Clearly and Accurately Instruct On An Element
CG 3.6 Failure To Specifically Enumerate One Or More Elements
CG 3.7 Failure To Tailor Elements To The Facts And Charge
CG 3.8 Concurrence Of Act And Intent Or Mental State
CG 3.9 Preliminary Factual Finding As To Element
CG 3.10 Elements Of Crime Based On Failure To Perform A Legal Duty
CG 3.11 Applicability Of Federal Constitutional Rights To Sentencing Decisions
CG 3.12 Requirement Of Criminal Mens Rea
Return to Constitutional Grounds Table of Contents.
CG 3.1 Elements.
See FORECITE CG 2.2; see also Piaskowski v. Bett (7th Cir. 2001) 256 F3d 687.
CG 3.1.1 Prosecution Must Prove Every Element Of Special Circumstance.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by allowing the jury to find the special circumstance without proof beyond a reasonable doubt of every fact and element necessary to constitute the special circumstance. (Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428]; Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.2 Directed Verdict On Element.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to require the prosecution to prove every fact necessary to prove the charged crime and every element of the crime beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].)
(2) Directing the jury’s verdict on an essential fact or element of the charged offense. (See U.S. v. Gaudin (1995) 515 US 506, 509-12 [115 SCt 2309; 132 LEd2d 444]; Osborne v. Ohio (1990) 495 US 103, 122-23 [110 SCt 1691; 109 LEd2d 98].)
“If the Sixth Amendment right to have a jury decide guilt and innocence means anything … it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt….” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; see also U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)
“When a judge gives an instruction preventing the jury from considering a material issue, the instruction is equivalent to an impermissible directed verdict on the issue.” (U.S. v. Piche (4th Cir. 1992) 981 F2d 706, 716.) Hence, the jury must be given an opportunity to decide the essential factual questions presented by the evidence. (See People v. Figueroa (1986) 41 C3d 714, 724; U.S. v. Voss, 787 F2d at 398.)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.3 Directed Verdict On Essential Factual Issue.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to require the prosecution to prove every fact necessary to prove the charged crime and every element of the crime beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].)
(2) Directing the jury’s verdict on an essential fact or element of the charged offense. (See U.S. v. Gaudin (1995) 515 US 506, 509-12 [115 SCt 2309; 132 LEd2d 444]; Osborne v. Ohio (1990) 495 US 103, 122-23 [110 SCt 1691; 109 LEd2d 98].)
“If the Sixth Amendment right to have a jury decide guilt and innocence means anything … it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt …” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; see also U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)
“When a judge gives an instruction preventing the jury from considering a material issue, the instruction is equivalent to an impermissible directed verdict on the issue.” (U.S. v. Piche (4th Cir. 1992) 981 F2d 706, 716.) Hence, the jury must be given an opportunity to decide the essential factual questions presented by the evidence. (See People v. Figueroa (1986) 41 C3d 714, 724; U.S. v. Voss, 787 F2d at 398.)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.4 Erroneous, Conflicting And/Or Contradictory Instructions On Elements.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to require the prosecution to prove every element of the charged offense beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)
(2) Erroneously defining the elements of the crime in violation of the 6th Amendment and the Due Process Clause. (See Ho v. Carey (9th Cir. 2003) 332 F3d 587 [erroneous jury instruction defining second degree implied malice murder as a general intent crime deprived petitioner of his right to have the jury decide every element of the offense]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 740 [trial court’s modification of CALJIC pattern instruction on robbery, defining specific intent required for robbery as the “specific intent to rob (the victim) of money over which she had control” eviscerated the “immediate presence” requirement and violated due process]; Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664 [erroneous instruction on nonexistent theory of felony-murder violated due process]; People v. Lee (1987) 43 C3d 666, 674; McNeil v. Middleton (9th Cir. 2003) 344 F3d 988 [erroneous self-defense instructions under state law violated due process by preventing petitioner from presenting her defense of unreasonable self-defense as perceived by one suffering from the effects of Battered Woman’s Syndrome].)
(3) Providing confusing and/or contradictory definitions of an element or elements of the charged offense. (See People v. Lee (1987) 43 C3d 666, 673-74 and cases cited therein; People v. Macedo (1989) 213 CA3d 554, 561 [“conflicting or inadequate instructions on intent are closely related to instructions that completely remove the issue of intent from the jury’s consideration…they constitute federal constitutional error” ]; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt” ].) “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” (Francis v. Franklin (1985) 471 US 307, 322 [105 SCt 1965; 85 LEd2d 344]; see also Cabana v. Bullock (1986) 474 US 376, 384, fn 2 [106 SCt 689; 88 LEd2d 704].)
[See also FORECITE CG 7.2.1.]
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITECG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.5 Failure To Fully, Clearly and Accurately Instruct On An Element.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to require the prosecution to prove every element of the charged offense beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)
(2) Erroneously defining the elements of the crime in violation of the 6th Amendment and the Due Process Clause. (See Ho v. Carey (9th Cir. 2003) 332 F3d 587 [erroneous jury instruction defining second degree implied malice murder as a general intent crime deprived petitioner of his right to have the jury decide every element of the offense]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 740 [trial court’s modification of CALJIC pattern instruction on robbery, defining specific intent required for robbery as the “specific intent to rob (the victim) of money over which she had control” eviscerated the “immediate presence” requirement and violated due process]; Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664 [erroneous instruction on nonexistent theory of felony-murder violated due process]; People v. Lee (1987) 43 C3d 666, 674; McNeil v. Middleton (9th Cir. 2003) 344 F3d 988 [erroneous self-defense instructions under state law violated due process by preventing petitioner from presenting her defense of unreasonable self-defense as perceived by one suffering from the effects of Battered Woman’s Syndrome].)
(3) Providing confusing and/or contradictory definitions of an element or elements of the charged offense. (See People v. Lee (1987) 43 C3d 666, 673-74 and cases cited therein; People v. Macedo (1989) 213 CA3d 554, 561 [“conflicting or inadequate instructions on intent are closely related to instructions that completely remove the issue of intent from the jury’s consideration … they constitute federal constitutional error” ]; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt” ].) “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” (Francis v. Franklin (1985) 471 US 307, 322 [105 SCt 1965; 85 LEd2d 344]; see also Cabana v. Bullock (1986) 474 US 376, 384, fn 2 [106 SCt 689; 88 LEd2d 704].)
[See also FORECITE CG 7.2.1.]
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.6 Failure To Specifically Enumerate One Or More Elements.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to assure that the defendant will not be convicted unless the prosecution has proven beyond a reasonable doubt every fact essential to prove the charged crime and every element necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].) “If the Sixth Amendment right to have a jury decide guilt and innocence means anything … it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt…” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S., 527 US at 12; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [by instructing the jurors that they must find the defendant guilty if they determine that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function].)
(2) Failing to clearly and expressly enumerate each discrete element in the body of the instructions so as to assure the jurors understand precisely what must be proven. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741 [Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition]; see also generally Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942.)
(3) Enumerating some elements and not others and, thus, failing to assure that the jurors will consider each element on an equal footing and not give certain elements more or less consideration. Undue emphasis of particular elements or instructions violates the defendant’s right to a fair and impartial trial by jury and may unduly favor the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; Cool v. United States (1972) 409 US 100 [34 LEd2d 335; 93 SCt 354]; United States v. Harbin (7th Cir. 2001) 250 F3d 532; [See also FORECITE CG 5.4.3 & CG 6.5].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.7 Failure To Tailor Elements To The Facts And Charge.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by failing to tailor the instructions to the facts in order to assure that the jury will fairly, impartially and accurately apply the law to the facts. (U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts …” ]; Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood the instructions];Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844]; cf., Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748 [same].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618] [jurors must be able to follow and apply the judge’s instructions]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.8 Concurrence Of Act And Intent Or Mental State.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by failing to fully and accurately instruct the jury that any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution by a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
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 (1980) 27 C3d 1, 53.) “The scienter for any crime is inextricably linked to the proscribed act or omission. [Citation to PC 20].” (People v. Sargent (1999) 19 C4th 1206, 1222.) “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 (1956) 46 C2d 798, 801; see also Green at 53.)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.9 Preliminary Factual Finding As To Element.
See FORECITE CG 5.7 [Preliminary Facts].
CG 3.10 Elements Of Crime Based On Failure To Perform A Legal Duty [Reserved]
CG 3.11 Applicability Of Federal Constitutional Rights To Sentencing Decisions.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to apply federal constitutional protections, including trial by jury and proof beyond a reasonable doubt, to facts which increases the penalty beyond the statutory maximum. (Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435].) This rule is grounded upon the 14th Amendment right to due process and the 6th Amendment right to trial by jury: “[P]ractice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond a reasonable doubt.” (Apprendi, 120 SCt 2359.) ” ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ [Citation.]” (Apprendi, 120 SCt at 2363; see also Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 3.12 Requirement Of Criminal Mens Rea.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by allowing the defendant to be convicted without proof beyond a reasonable doubt of the required criminal mens rea. (See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [115 SCt 2309; 132 LEd2d 444]; Carella v. California (1989) 491 US 263 [109 SCt 2419; 105 LEd2d 218].)
Both the California and the United States Supreme Courts have consistently disapproved of criminal liability based upon a “strict liability” interpretation of a statute which would permit culpability despite the defendant’s ignorance of the facts which make an act punishable. (See People v. Simon (1995) 9 C4th 493, 519-522 [the issue is one of federal and state due process]; Staples v. United States (1994) 511 US 600 [128 LEd2d 608; 114 SCt 1793]; Lambert v. California (1957) 355 US 225 [2 LEd2d 228; 78 SCt 240].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)