SERIES 200 POST-TRIAL: INTRODUCTORY
F 207 PROOF NEED NOT SHOW ACTUAL DATE
TABLE OF CONTENTS
F 207 Inst 1 Proof Need Now Show Actual Date: “On Or About” As Preferable To “Reasonably Close”
F 207 Note 1 Time of Crime: Effect Of Accusatory Pleading And Proof
F 207 Note 2 Time of Crime: Request For Continuance Necessary To Preserve Variance Issue
F 207 Note 3 Specification of Distinction Between CALCRIM 207 and CALCRIM 3501
Return to Series 200 Table of Contents.
F 207 Inst 1 Proof Need Now Show Actual Date: “On Or About” As Preferable To Reasonably Close”
*Modify CC 207, sentence 2, as follows [added language is underlined; deleted language is stricken]:
The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to on or about that day.
Points and Authorities
On Or About” vs.” Reasonably Close”— CALCRIM 207 replaced the traditional “on or about” language of CALJIC with the phrase “reasonably close.” However, CALCRIM cites no case law authorizing such a standard. On the other hand, the “on or about” standard has been long approved. (See People v. Starkey (1965) 234 CA2d 822 [when offense is charged as committed “on or about” named date, exact date need not be proved, unless time is material ingredient of offense; evidence is not insufficient merely because it shows that offense was committed on another date]; People v. Miller (1902) 137 C 642, 70 P 735 [information charging offense to have been committed “on or about” a date two days prior to its filing is sufficient, without stating in terms that the offense was committed previously]; People v. Lyon (1955) 135 CA2d 558.)
Moreover, “reasonably close” seemingly gives the jurors more latitude to convict. A reasonable juror could conclude that several weeks before or after the charged date is “reasonably close” but it doubtful that anyone would conclude that several weeks satisfies the “on or about” standard.
Ingrained in our concept of due process is the requirement of notice.” (Lambert v. California (1957) 355 US 225, 228 [2 LEd2d 228; 78 SCt 240]; see also Lankford v. Idaho (1991) 500 US 110, 119-23 [114 LEd2d 173; 111 SCt 1723]; Calderon v. Prunty (9th Cir. 1995) 59 F3d 1005, 1009-1010.)
Ex Post Facto Analysis— See FORECITE F 105.4 Inst 4.
Identification Of Parties— See FORECITE 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
FORECITE CG 6.1 [Due Process And Notice—Generally]
FORECITE CG 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 207 Note 1 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 (1991) 53 C3d 334, 358.) 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 (1968) 259 CA2d 653, 660-61.)
CALJIC NOTE: See FORECITE F 4.71 n2.
F 207 Note 2 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 (1968) 259 CA2d 653, 661; see also Gray v. Netherland (1996) 518 US 152 [135 LEd2d 457; 116 SCt 2074] [formal request for continuance required to preserve lack of notice claim regarding prosecution evidence].)
CALJIC NOTE: See FORECITE F 4.71 n3.
F 207 Note 3 Specification of Distinction Between CALCRIM 207 And CALCRIM 3501
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, CALCRIM 207 and CALCRIM 3501 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.
CALJIC NOTE: See FORECITE F 4.71 n4.
