SERIES 300 EVIDENCE
F 370 NOTES
TABLE OF CONTENTS
F 370 Note 1 Motive: Distinguished From Intent And Malice
F 370 Note 2 Improper To Give CC 370 When Motive Is An Element Of The Offense (E.g., Annoying Or Molesting A Child; Hate Crimes)
F 370 Note 3 Defense Argument To Jury Allowed Jurors To Consider Motive-Based Defense
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F 370 Note 1 Motive: Distinguished From Intent And Malice
In People v. Snead (1993) 20 CA4th 1088, 1098, the Court of Appeal rejected an argument that the motive instruction conflicted with other instructions concerning intent and malice. The court concluded that the words motive, intent and malice are “separate and disparate mental states.”
CALJIC NOTE: See FORECITE F 2.51 n1.
F 370 Note 2 Improper To Give CC 370 When Motive Is An Element Of The Offense (E.g., Annoying Or Molesting A Child; Hate Crimes)
When motive is an element of the charged offense CC 370 should not be given. For example. CALCRIM 1122 [Annoying or Molesting a Child] correctly informs the jury that, under PC 647.6, motive is an element of the charge because the acts of the defendant must be motivated by an unnatural or abnormal sexual interest in the victim. Hence, it is error to give CJ 2.51 (now CC 370) which tells the jury that motive is not an element of the offense. (People v. Maurer (1995) 32 CA4th 1121, 1126-27.)
Similarly, CC 370 should not be given in a hate crime prosecution. (See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:3, Authors’ Notes, p. 59.)
CALJIC NOTE: See FORECITE F 2.51 n2.
F 370 Note 3 Defense Argument To Jury Allowed Jurors To Consider Motive-Based Defense
This instruction does not lessen the prosecution’s duty to prove the required intent elements of the charge set forth in instruction _____ <insert applicable instruction on elements of charge>. Also, the instruction does not lessen the jurors’ duty to consider any defense theory seeking to negate such required intent. (See People v. Bordelon (2008) 162 CA4th 1311 [To the extent the motive instruction implied that motive cannot support a defense, the implication was effectively negated by the specific intent instruction and the arguments of counsel].)
