SERIES 200 POST-TRIAL: INTRODUCTORY
F 251 UNION OF ACT AND INTENT: SPECIFIC INTENT OR MENTAL STATE
F 252 UNION OF ACT AND INTENT—GENERAL AND SPECIFIC INTENT TOGETHER
TABLE OF CONTENTS
F 251 UNION OF ACT AND INTENT: SPECIFIC INTENT OR MENTAL STATE
F 251 Inst 1 Specific Intent Or Mental State: Applicability To Multiple Acts And Course Of Conduct
F 251 Inst 2 Modification For Offenses Requiring Both Specific Intent And Mental State
F 251 Inst 3 Union Of Act And Intent Applies To Act Or Conduct
F 251 Inst 4 Union Of Act And Intent: Aiding And Abetting Allegation
F 251 Inst 5 Union Of Act And Intent: Deletion Of Terms “General” and “Specific” Intent
F 251 NOTES
F 251 Note 1 Concurrence Of Act and Intent: Specific Intent And Murder
F 251 Note 2 Delineation Of Specific Intent Must Be Requested (PC 20)
F 251 Note 3 Concurrence Of Act And Intent Requirement Of Causal Connection.
F 251 Note 4 Act-Intent/Mental State Concurrence: Standard Of Prejudice
F 251 Note 5 Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness
F 252 UNION OF ACT AND INTENT—GENERAL AND SPECIFIC INTENT TOGETHER
F 252 Inst 1 General Intent: Applicability To Multiple Acts And Course Of Conduct
F 252 Inst 2 General Intent: Knowledge Element
F 252 Inst 3 Specific Intent Or Mental State: Applicability To Multiple Acts And Course Of Conduct
F 252 Inst 4 Modification For Offenses Requiring Both Specific Intent And Mental State
F 252 Inst 5 Union Of Act And Intent Applies To Act Or Conduct
F 252 Inst 6 Union Of Act And Intent: Aiding And Abetting Allegation
F 252 Inst 7 Union Of Act And Intent: Deletion Of Terms “General” and “Specific” Intent
F 252 NOTES
F 252 Note 1 Concurrence Of Act And Intent Requirement Of Causal Connection.
F 252 Note 2 Act-Intent/Mental State Concurrence: Standard Of Prejudice
F 252 Note 3 Gun Use Only Requires General Intent
F 252 Note 4 Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness
Return to Series 200 Table of Contents.
F 251 UNION OF ACT AND INTENT: SPECIFIC INTENT OR MENTAL STATE
F 251 Inst 1 Specific Intent or Mental State: Applicability To Multiple Acts And Course Of Conduct
*Modify CC 251, paragraph 2, sentence 1 and 2 as follows [added language is underlined]:
In order to be guilty of the crime[s] of __________ <insert name[s] of alleged offense[s]> [or the allegation[s] of __________ <insert name[s] of enhancement[s]>], a person must not only intentionally commit the prohibited act or acts [and] [or] [course of conduct] [or intentionally fail to do the required act or acts], but must do so with a specific intent or mental state. The act or acts and the intent or mental state required are explained in the instruction for every crime [or allegation].
Points and Authorities
See FORECITE F 250 Inst 1.
F 251 Inst 2 Modification For Offenses Requiring Both Specific Intent And Mental State
*Modify CC 251, paragraph 2, sentence 2 as follows [added language is underlined]:
…but do so with a specific intent, knowledge and/or mental state.
Points and Authorities
Some Offenses Include Both Intent And Mental State— CALCRIM 251 fails to anticipate that some offenses (e.g., premeditated murder) include both a specific intent and mental state element. (See FORECITE F 225 Inst 3.)
Knowledge As Mental Element—See FORECITE F 225 Inst 3.
Identification Of Parties— See FORECITE F 100.2 Note 1.
CAVEAT: Use Of The Term “Specific Intent” As Confusing— CALCRIM 251 discusses the requirement of finding “specific intent.” The elements of the offenses to which the instruction refers do not include such a term. Hence, there is a potential for juror confusion.
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:
FORECITECG 3.8 [Concurrence Of Act And Intent Or Mental State]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 251 Inst 3 Union Of Act And Intent Applies To Act Or Conduct
*Modify CC 251 as follows [added language is underlined]:
Every crime [or other allegation] charged in this case requires proof of the union, or joint operation, of act or conduct and wrongful intent [except for the crime[s] charged in Count[s] __].
*Modify second paragraph as follows:
In order to be guilty of the crime[s] of __________ <insert name[s] of alleged offense[s]> [or the allegation[s] of __________ <insert name[s] of enhancement[s]>], a person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific intent or mental state. Unless this specific intent exists the [crime] [or] [allegation] to which it relates [is not committed] [or] [is not true]. The act and the intent or mental state required are explained in the instruction for every crime [or allegation].
Points and Authorities
CALCRIM 251 fails to assure that the jurors will understand the need to find the required concurrence between the defendant’s conduct and mens rea. (See generally People v. Danks (2004) 32 C4th 269 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out]; compare CJ 3.31.)
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.)
Identification Of PartiesC See FORECITE F 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 3.8 [Concurrence Of Act And Intent Or Mental State]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 251 Inst 4 Union Of Act And Intent: Aiding And Abetting Allegation
[When the prosecution is relying on a theory of aiding and abetting , modify CC 251 to include the specific intent and knowledge required to convict the defendant as an aider and abettor.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Necessity For Instruction – As the Bench Notes to CC 251 acknowledge, an instruction on the concurrence of act and specific intent/mental state is an essential element of the charge upon which sua sponte instruction is required. (See People v. Alvarez (1996) 14 C4th 155, 220.)
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.)
Accordingly, because aiding and abetting requires both specific intent and knowledge elements (see People v. Beeman (1984) 53 C3d 547, 560), CC 251 erroneously fails to address concurrence of act and intent/mental state vis-à-vis aiding and abetting liability.
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 3.8 [Concurrence Of Act And Intent Or Mental State]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 251 Inst 5 Union Of Act And Intent: Deletion Of Terms “General” and “Specific” Intent
Modify CC 251 as follows: Delete references to “General” or “Specific” intent in the title and/or body of the instruction.
Points and Authorities
See FORECITE PG XI(H).
F 251 NOTES
F 251 Note 1 Concurrence Of Act And Intent: Specific Intent And Murder
In People v. Alvarez (1996) 14 C4th 155, 220, the court concluded that the trial court erred insofar as its instruction on the concurrence of act and “specific intent” did not include the crime of murder.
CALJIC NOTE: See FORECITE F 3.30 n3.
F 251 Note 2 Delineation Of Specific Intent Must Be Requested (PC 20)
CJ 3.31 concerning the concurrence of actus reus and specific intent must be given sua sponte. However, any delineation in CJ 3.31 of the specific intent of the charged crime in CJ 3.31 must be requested. (People v. Cleaves (1991) 229 CA3d 367, 379-81.)
[Research Note: See FORECITE BIBLIO 3.30 et al.]
CALJIC NOTE: See FORECITE F 3.31 n1.
F 251 Note 3 Concurrence Of Act And Intent Requirement Of Causal Connection
See FORECITE F 250 Note 3.
F 251 Note 4 Act-Intent/Mental State Concurrence: Standard Of Prejudice
See FORECITE F 3.31 n3.
F 251 Note 5 Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness
[NF] People v. Cottone REV GTD (8/17/2011, S194107) 195 CA4th 245: The DA here was permitted to use a 32-year old prior incident, when the defendant was 13 and molested his 5-year old sister. The defendant was never charged or convicted of that prior offense. Of course, had he been charged, PC 26 would have applied. That section says that children under 14 can’t commit crimes unless there’s clear proof that the minor appreciated the wrongfulness of the act. This rebuttable presumption applies to EC 1108 evidence and the jury must be instructed that the PC 26 requirement is a prerequisite to application of EC 1108.
F 252 UNION OF ACT AND INTENT—GENERAL AND SPECIFIC INTENT TOGETHER
F 252 Inst 1 General Intent: Applicability To Multiple Acts And Course Of Conduct. See FORECITE F 250 Inst 1.
F 252 Inst 2 General Intent: Knowledge Element. See FORECITE F 250 Inst 2.
F 252 Inst 3 Specific Intent Or Mental State: Applicability To Multiple Acts And Course Of Conduct. See FORECITE F 251 Inst 1.
F 252 Inst 4 Modification For Offenses Requiring Both Specific Intent And Mental State. See FORECITE F 251 Inst 2.
F 252 Inst 5 Union Of Act And Intent Applies To Act Or Conduct. See FORECITE F 251 Inst 3.
F 252 Inst 6 Union Of Act And Intent: Aiding And Abetting Allegation
See FORECITE F 251 Inst 4.
F 252 Inst 7 Union Of Act And Intent: Deletion Of Terms “General” and “Specific” Intent
Modify CC 252 as follows: Delete references to “General” or “Specific” intent in the title and/or body of the instruction.
Points and Authorities
See FORECITE PG XI(H).
F 252 NOTES
F 252 Note 1 Concurrence Of Act And Intent Requirement Of Causal Connection
See FORECITE F 250 Note 3.
F 252 Note 2 Act-Intent/Mental State Concurrence: Standard Of Prejudice
See FORECITE F 3.31 n3.
F 252 Note 3 Gun Use Only Requires General Intent
See FORECITE F 3146 Note 13.
F 252 Note 4 Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness
See FORECITE F 251 Note 5.
