PG VII(I)(b) Grounds For All Cases—Capital and Non-Capital
TABLE OF CONTENTS
CG 8 Lesser Offenses
CG 8.1 Lesser Included Offense: Requested As Defense Theory
CG 8.2 Lesser Included: Failure To Instruct Sua Sponte
CG 8.3 Lesser Included—Capital Case
CG 8.4 Right To Jury Determination Of Lesser Included Offense
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CG 8 Lesser Offenses.
CG 8.1 Lesser Included Offense: Requested As Defense Theory.
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 fully and correctly instruct the jury on a lesser included offense as a defense theory as requested by the defendant. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-40; Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; cf. Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54].)
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 8.2 Lesser Included: Failure To Instruct Sua Sponte.
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 violating the defendant’s right to instruction on lesser included offenses. (See Vujosevic v. Rafferty (3d Cir. 1988) 844 F2d 1023, 1027-28; see also Ferrazza v. Mintzes (6th Cir. 1984) 735 F2d 967, 968; Turner v. Marshall (9th Cir. 1995) 63 F3d 807, 818-19 [discussing split in circuits on this issue]; but see James v. Reese (9th Cir. 1976) 546 F2d 325, 327; Woratzeck v. Ricketts (9th Cir. 1987) 820 F2d 1450, 1457.)
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 8.3 Lesser IncludedCCapital Case.
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].)
This instruction is also required by the cruel and unusual punishment clause of the federal constitution (8th Amendment) which requires that the jury be given instruction on lesser included offenses in a capital case. (Beck v. Alabama (1980) 447 US 625 [100 SCt 2382; 65 LEd2d 392].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to fully and correctly instruct on lesser included offenses in a capital case.
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 8.4 Right To Jury Determination Of Lesser Included Offense.
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:
(1) Failing to assure a full and fair jury determination of the defendant’s lesser offense defense theory. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-40; Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; cf. Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54].) “. . . [A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence and . . . where there is substantial evidence raising a question as to whether all of the elements of the charged offense are present, the failure to instruct on a lesser included offense, even in the absence of a request, constitutes a denial of that right. [Citation].” (People v. Benavides (2005) 35 C4th 69, 102, internal citations and quotation marks omitted; see also People v. Melton (1988) 44 C3d 713, 746; Vujosevic v. Rafferty (3d Cir. 1988) 844 F2d 1023, 1027-28; Ferrazza v. Mintzes (6th Cir. 1984) 735 F2d 967, 968.)
(2) Unconstitutionally reducing the reliability of the jurors’ disposition of this case. (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].) “Our courts are not gambling halls but forums for the discovery of truth. [Citation.] Truth may lie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between those two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court’s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury’s truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an “all or nothing” choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence. [fn omitted].” (People v. Barton (95) 12 C4th 186, 196 [47 CR2d 569].) Instructions that fail to inform the jury of its option to convict the defendant of a lesser included offense shown by the evidence are necessarily incomplete. “`Trial courts have a sua sponte duty to instruct regarding lesser included offenses because neither the defendant not the People have a right to incomplete instructions.’ (Citation.)” (Id., at 204.) If given no opportunity to convict of the lesser offense, the jury may wrongly convict of the greater charge. (People v. Webster (1991) 54 C3d 411, 444, fn 17 [285 CR 31]; see also Beck v. Alabama (1980) 447 US 625, 633 [65 LEd2d 392] [“all or nothing” choice violates 8th Amendment in capital cases].)
[See also FORECITE CG 1.14 [Reliability].]
(3) Denying the defendant a fair opportunity to defend and failing to require the jurors to consider any defense theory which the defendant offers to negate an element of the charge. (See Michelson v. United States (1948) 335 US 469, 476 [69 SCt 213; 93 LEd2d 168] [character evidence denied defendant a “fair opportunity to defend”]; Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship]; Jackson v. Virginia (1979) 443 US 307, 314 [99 SCt 2781; 61 LEd2d 560]; Chambers v. Mississippi (1973) 410 US 284, 294 [93 SCt1038; 35 LEd2d 297]; Cooper v. Oklahoma (1996) 517 US 348, 369 [116 SCt 1373; 134 LEd2d 498] [“fundamental fairness”]; Conde v. Henry, 198 F3d at 739-40; U.S. v. Douglas (7th Cir. 1987) 818 F2d 1317, 1322; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58; Strauss v. U.S. (5th Cir. 1967) 376 F2d 416, 419; U.S. ex rel. Means v. Solem (8th Cir. 1980) 646 F2d 322, 327-28; State v. Thomas (NJ 1991) 586 A2d 250, 253 [fundamental fairness demanded DNA testing]; People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)
This request is also based on the Fourteenth 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.]
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].)
