SERIES 300 EVIDENCE
F 370 Motive
TABLE OF CONTENTS
F 370 Inst 1 No Duty To “Reach A Verdict“
F 370 Inst 2 Specification Of Motive To Commit The Charged Crime
F 370 Inst 3 Motive, Planning And Manner Of Killing Evidence Should All Be Considered When Premeditation And Deliberation Is An Element Of The Charge
F 370 Inst 4 Need To Differentiate Between Common Sense And Technical Legal Definitions Of Motive
F 370 Inst 5 Clarification Of Language
F 370 Inst 6 Motive: Modification Of Burden Shifting Language
F 370 Inst 7 (a & b) Motive: Modification Of “Tending To Show“ Language
F 370 Inst 8 (a-c) Motive Alone Insufficient To Establish Guilt
F 370 Inst 9 Motive: Application To Third Party Suspect
F 370 Inst 10 Motive: Defense Theory Instruction Relating Absence Of Motive To Burden Of Proof
F 370 Inst 11 Challenge To Motive Instruction As Argumentative And Confusing
Return to Series 300 Table of Contents.
F 370 Inst 1 No Duty To “Reach A Verdict”
*Modify CC 370, paragraph1, sentence 2 as follows [added language is underlined; deleted language is stricken]:
In reaching your verdict deliberations you may, however, consider whether the defendant had a motive.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 370 Inst 2 Specification Of Motive To Commit The Charged Crime
*Modify CC 370, paragraph 2, sentence 1 as follows [added language is underlined]:
Having a motive to commit the charged crime may be a factor tending to show that the defendant is guilty.
Points and Authorities
Without the above modification CALCRIM 370 improperly allows juror consideration of any free-floating or untethered motive.
Identification Of Parties.—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 370 Inst 3 Motive, Planning And Manner Of Killing Evidence Should All Be Considered When Premeditation And Deliberation Is An Element Of The Charge
*Add to CC 370:
Motive is not technically an element of premeditated and deliberated first degree murder.
However, in considering whether the prosecution has proven premeditation and deliberation the factors for you to consider include, but are not limited to, the following:
1. Whether the manner in which ______________ <name of victim> was killed suggests calculation and deliberation as opposed to an explosion of violence or rage.
2. Whether the defendant engaged in planning and preparation prior to [allegedly] killing ______________ <name of victim>; and
3. Whether the defendant had a motive to kill ______________ <name of victim>.
Points and Authorities
It is well established that manner, or planning and motive evidence are all relevant to whether the prosecution has proven premeditation and deliberation. (See People v. Anderson (1968) 70 C2d 15.)
Unless CC 370 is supplemented as set forth above, the motive factor will be given undue emphasis above and beyond the other two relevant factors. Therefore, because the instructions must be balanced and free from undue emphasis, the above instruction should be given when appropriate. (See generally Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE F 315.1.1 Inst 2.)
Identification Of Parties.—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 4.1 [Right to Instruction On Defense Theories]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 370 Inst 4 Need To Differentiate Between Common Sense And Technical Legal Definitions Of Motive
Alternative a:
Modify CC 370, ¶ 1, sentence 1, to provide as follows [added language is underlined; deleted language is stricken]:
The People are prosecution is not required to prove that the defendant _______________ <name of defendant> had a motive to commit (any of the crimes/the crime) charged other than the intent and mental state elements enumerated in Instruction # _____ which specifies what the prosecution is required to prove.
Alternative b:
Add to CC 370 when appropriate:
This instruction is not intended to eliminate or reduce the mental state and intent requirements for the charge of ______________ <insert charge with purposeful conduct requirements, e.g., torture [PC ____]; killing for financial gain [PC _____]; torture murder [PC 189]; premeditated and deliberate murder [PC 189], etc.>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
Motive Is A Technical Legal Term Which Should Be Defined – “Any reason for doing something can rightly be called a motive in common language, including – but not limited to – reasons that stand behind other reasons.” (People v. Fuentes (2009) 171 CA4th 1133, 1140.) However, according to Fuentes the legal definition of motive applies only to motives which are not elements of the charge so it is more limited than the “common sense” meaning of the term. (Ibid.)
Accordingly, CC 370 should be modified to expressly instruct the jurors on this technical legal definition of motive. “A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” (People v. Estrada (1995) 11 C4th 568, 574; People v. Roberge (2003) 29 C4th 979, 988; see also People v. Hudson (2006) 38 C4th 1002, 1012; People v. Pitmon (1985) 170 CA3d 38, 52; People v. Hill (1983) 141 CA3d 661, 668; People v. McElheny (1982) 137 CA3d 396, 403.)
No Reference To “The People” – The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank #CM-006.]
Use Of The Term “Defendant” – The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 370 Inst 5 Clarification Of Language
*Modify CC 370, paragraph 1, sentence 2, as follows [added language is underlined]:
… whether the defendant had such a motive.
Points and Authorities
The clarification assures that the jurors will not rely on a free-floating or untethered motive. (See FORECITE F 370 Inst 2.)
Identification Of Parties.—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 370 Inst 6 Motive: Modification Of Burden Shifting Language
*Replace CC 370 with:
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may be sufficient to leave you with a reasonable doubt as to the guilt of the defendant. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.
Points and Authorities
Defendant Has No Duty To “Show” He Or She Is Not Guilty.—CALCRIM 370 employs erroneous burden shifting language by implying a defense obligation to “show the defendant is not guilty.” (See FORECITE F 100.1 Inst 1.)
Relevance Of Absence Of Motive.—See FORECITE F 370 Inst 9.
Defendant Has No Duty To Prove Lack Of Motive.—CALCRIM 370 erroneously implies that absence of motive may only be considered if proven by the defendant. (See FORECITE F 1001. Inst 1.)
Alone Sufficient For Reasonable Doubt.—See FORECITE F 301 Inst 13.
Identification Of Parties.—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES
People v. Estep (1996) 42 CA4th 733 held that the failure of the trial court to sua sponte modify CJ 2.51 to eliminate reference to guilt and innocence did not violate due process. However, the decision does not foreclose raising the issue in other state courts or in federal court. Nor does Estep rule out modification of the instruction upon request.
People v. Frye (1998) 18 C4th 894, 958 held that in light of other instructions given in that case, and the prosecutor’s argument, use of the term innocence in CJ 2.51 regarding motive did not shift the burden of proof to the defendant to prove his innocence.
See FORECITE BIBLIO 2.51.
CALJIC NOTE: See FORECITE F 2.51a.
F 370 Inst 7 (a & b) Motive: Modification Of “Tending To Show” Language
Alternative a:
[Delete CC 370, paragraph 2]
Alternative b:
*Replace CC 370, paragraph 2, with:
Presence of motive, if any, is not sufficient in itself to establish the defendant’s guilt but is a factor to consider, in evaluating in light of all the circumstances, whether the prosecution has proven the defendant guilty beyond a reasonable doubt.
[NOTE: Sentence 2 is deleted in favor of a defense theory pinpoint instruction. (FORECITE F 370 Inst 10).]
Points and Authorities
“Tending To Show The Defendant Is Guilty.”—In the context of the entire set of standard CALCRIM instructions, CC 370 effectively informs the jury that motive alone may be the basis for a finding of guilt, stating that motive “may be a factor tending to show that the defendant is guilty.” (See generally People v. Lewis (2001) 25 C4th 610, 649 [in assessing claim of error court must “consider the entire charge to the jury and not simply the asserted deficiencies in the challenged instruction” ].)
Of the evidentiary instructions typically given to the jury, the motive instruction is the only one identifying a single circumstance which “may tend to establish the defendant is guilty. Instructing the jury that the People have introduced evidence ‘tending to prove’ appellant’s guilt carries the inference that the People have, in fact, established guilt.” (People v. Owens (1994) 27 CA4th 1155, 1158, italics added.) Every other instruction covering an individual evidentiary circumstance includes an admonition that it is insufficient to establish guilt or otherwise made that point clear. (See e.g., CALJIC 2.23/CALCRIM 316; CJ 2.23.1/CC 316; CJ 2.52/CC 372; CJ 3.01/CC 401; CJ 6.13/CC 415; CJ 6.18/CC 417.)
To the extent that CC 370 is startlingly anomalous in this context, it prejudices defendant. To reasonable jurors, CC 370 would appear to include an intentional omission: if motive were insufficient by itself to establish guilt, the instruction would say so. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusio alterius, the deductive concept is commonly understood, and … [may] mislead a reasonable juror … .” (People v. Castillo (1997) 16 C4th 1009, 1020 (conc. opn. of Brown, J.); see also United States v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense” ].)
That is how the Court reasoned in People v. Dewberry (1959) 51 C2d 548, 557; see also People v. Salas (1976) 58 CA3d 460, 474 [when generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another, the inconsistency may be prejudicial error].)
There is a “reasonable likelihood that the jury … [will apply CC 370 instruction in a way that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 US 62, 72 [116 LEd2d 385; 112 SCt 475], internal quotation marks omitted.) CC 370 allows the jury to infer a finding of guilt from evidence of motive. This violates defendant’s federal and state constitutional rights to due process and jury trial. “Permissive inference jury instructions are disfavored because they ‘tend to take the focus away from the elements that must be proved.’ [Citation.]” (Hanna v. Riveland (9th Cir. 1996) 87 F3d 1034, 1037.) Nevertheless, a permissive inference instruction comports with due process unless, “under the facts of the case, there is no rational way for the jury to make the connection permitted by the inference.” (Ulster County Court v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213].) Under those circumstances, there is an unacceptable “risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Ibid.)
In sum, because motive alone is not a rational basis upon which to infer guilt (see e.g., People v. Hall (1986) 41 C3d 826, 833, 835 [motive insufficient to support third-party culpability defense]; United States v. Mitchell (9th Cir. 1999) 172 F3d 1104 [motive to obtain money insufficient to prove guilt of robbery]), CJ 2.51 effectively lowers the prosecution’s burden of proof, violating due process. (Ulster County Court v. Allen, supra, 442 US at 157 [60 LEd2d at 792]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 315-316.)
“Tending To Show The Defendant Is Not Guilty.”—See FORECITE F 370 Inst 10.
Identification Of Parties—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
For briefing on this issue, see B-980.
See also FORECITE F 370(h).
CALJIC NOTE: See FORECITE F 2.51d.
F 370 Inst 8 (a-c) Motive Alone Insufficient To Establish Guilt
*Add to CC 370:
Alternative a [CALCRIM 1400 Format]:
Motive is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant guilty of _______________ <insert charged offense>.
Alternative b [CALCRIM 315 Format]:
Evidence of motive cannot prove guilt by itself.
Alternative c:
Motive is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.
Points and Authorities
It is beyond question that motive alone is insufficient as a matter of law to prove guilt. Due process requires substantial evidence of guilt. (Jackson v. Virginia (1979) 443 US 307 [61 LEd2d 560; 99 SCt 2781].) Motive alone does not meet this standard because a conviction based on such evidence would be speculative and conjectural. (See e.g., U.S. v. Mitchell (9th Cir. 1999) 172 F3d 1104 [motive alone insufficient to prove larceny].)
However, unlike many other standard evidentiary instructions CC 370 does not include an admonition that the individual circumstances discussed by the instruction is not alone sufficient to prove guilt. (See e.g., CC 315 [evidence that the defendant made such a statement cannot prove guilt by itself]; CC 316 [evidence of such an attempt cannot prove guilt by itself]; CC 318 [evidence that the defendant fled [or tried to flee] cannot prove guilt by itself]; CC 610 [a threat of future harm is not sufficient; the danger must have been immediate]; CC 932 [it is not sufficient by itself to prove that the defendant is guilty of __________ <insert charged offense[s] involving domestic violence>]; CC 933 [It is not sufficient by itself to prove that the defendant is guilty of __________ <insert charged offense[s] involving elder or dependent adult abuse>]; CC 1275 [it is not sufficient by itself to prove that the defendant is guilty of __________ <insert charged sex offense[s]>]; CC 360 [it is not sufficient by itself to prove that the defendant is guilty of __________ <insert charged offense[s]>]; CC 1970 [it is not sufficient by itself to prove that the defendant is guilty of __________ <insert charged offense>].)
To the extent that CC 370 is startlingly anomalous in this context, it risks prejudicing defendant during deliberations. If the court reads any one or more of the other evidentiary instructions listed above, it will typically be within moments of the motive instruction. To reasonable minds, that instruction would appear to include an intentional omission: if motive were insufficient by itself to establish guilt, the instruction obviously would say so. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ….” (People v. Castillo (1997) 16 C4th 1009, 1020 [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius “is a product of logic and common sense” ].) As the California Supreme Court reasoned in People v. Dewberry (1959) 51 C2d 548, 557:
“The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.” (See also People v. Salas (1976) 58 CA3d 460, 474 [when a generally applicable instruction, such as CJ 2.02, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error].) Effectively, the context highlights the omission, so the jury learns that it may properly use motive alone to establish guilt. This would violate the defendant’s federal and state constitutional rights to due process of law and fair trial by jury. (5th, 6th and 14th Amendments.)
Identification Of Parties.—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.51c.
F 370 Inst 9 Motive: Application To Third Party Suspect
*Add to CC 370 when appropriate:
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive in the defendant or _________ <insert name of third party> may tend to establish that person’s guilt. Absence of motive in the defendant or __________ <insert name of third party> may tend to establish that person’s innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.
Points and Authorities
Motive can be highly probative evidence. “[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effects, and wide latitude is permitted in admitting evidence of its existence.” (People v. Lopez (1969) 1 CA3d 78, 85; see also People v. Gonzalez (2005) 126 CA4th 1539, 1550; see also People v. Martin (1994) 23 CA4th 76, 81 [gang activity or membership admissible where “important to motive … even if prejudicial” ].)
Accordingly, where evidence of the guilt of a third party is presented, CC 370 should be modified to allow the jury to consider the third party’s motive in determining whether the third party evidence leaves the jurors with a reasonable doubt as to the defendant’s guilt. (See FORECITE F 362.4 Inst 2; see also FORECITE F 8.84.1 n8 [Non-CALCRIM Third Party Guilt].
NOTE: CC 370 makes no reference to motive in connection with a specific party, but in context it clearly refers to the defendant and no one else.
Identification Of Parties.—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.51b.
F 370 Inst 10 Motive: Defense Theory Instruction Relating Absence Of Motive To Burden Of Proof
Alternative a [CALCRIM 350 Format]:
[You have heard testimony] [The defense contends] that the defendant did not have a motive to commit the charged crime[s]. Consider that testimony along with all the other evidence in attempting to decide whether the prosecution has proved the defendant guilty beyond a reasonable doubt. Absence of motive can by itself leave you with a reasonable doubt that the defendant is guilty.
Alternative b [CALCRIM 3400 Format]:
The People must prove that the defendant is the person who committed the charged crime[s]. The defendant contends (he/she) did not commit the crime[s] and that (he/she) had no motive to commit them. However, the defendant does not need to prove (his/her) alleged absence of motive or anything else. Instead, the prosecution must prove every essential fact and element of the charge beyond a reasonable doubt.
If you have a reasonable doubt about whether the defendant committed the charged crime[s] you must find (him/her) not guilty.
Points and Authorities
By implying that the defendant is obligated to “show” he or she is not guilty, CALCRIM 370 improperly shifts the burden of proof. The defendant need not show or prove anything for the jurors to have a reasonable doubt as to guilt. (See In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; People v. Hill (1998) 17 C4th 800, 831; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127; see also FORECITE F 100.1 Inst 1.)
Hence, CC 370, paragraph 2, should be replace with a defense theory instruction which relates the absence of motive theory to the prosecution’s burden of proof. (See e.g., CC 350; CC 3400; see also FORECITE F 315.1.2 Inst 2.)
Identification Of Parties.—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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 370 Inst 11 Challenge To Motive Instruction As Argumentative And Confusing
* Modify CC 370 by deleting Paragraphs 1 and/or 2.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Defect – CC 370 is an argumentative instruction because: (1) it is “aimed at specific evidence” which is properly addressed in argument not in the instructions (see People v. Harris (1989) 47 CA3d 1047, 1098, fn. 31); and (2) it serves as unnecessary and improper judicial comment on the evidence by addressing matters which the prosecution does not need to prove. (See FORECITE PG III(B); F 362 Note 6; F 372 Note 6; F 416.3 Inst 4.) Moreover, because the technical legal definition of motive is different from the common meaning of the term (see FORECITE F 370 Inst 4), there is a danger that the jurors will be confused or misled by CC 370. Accordingly, the instruction should either not be given (see F 416.3 Inst 4) or modified to include the technical, legal definition of motive. (See FORECITE F 370 Inst 4.)
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 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.2.1 [Conflicting Or Contradictory Instructions]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: Because the proposed modification is an accurate statement of the law, if the request is denied by the trial court, counsel should be permitted to argue the matter to the jury. Such argument may explain that no additional instruction was given on the issue because it is assumed that the jury will understand the standard instruction to prohibit the consideration of flight as to issues other than identity. (See FORECITE F 200.5 Inst 3.)
