SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 415.1 CONSPIRACY: TITLE AND IDENTIFICATION OF PARTIES
F 415.2 CONSPIRACY: TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 415.3 CONSPIRACY: LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
TABLE OF CONTENTS
F 415.1 CONSPIRACY: TITLE AND IDENTIFICATION OF PARTIES
F 415.1 Inst 1 Conspiracy—Title
F 415.1 Inst 2 Identification Of Prosecution And Defendant
F 415.2 CONSPIRACY: TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 415.2 Inst 1 Alleged Agreement Should Be Tailored To Facts
F 415.2 Inst 2 Reference To “The Crime” Should Be Tailored
F 415.3 CONSPIRACY: LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 415.3 Inst 1 Instructions Should Not Assume A Conspiracy Has Been Proven
F 415.3 Inst 2 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A “Common Purpose”
F 415.3 Inst 3 Improper Assumption Of Membership
F 415.3 Inst 4 Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does “Not Have To Prove”
F 415.3 Inst 5 Reference To “Formal” And “Detailed” As Erroneous And Vague
F 415.3 Inst 6 Reference To Perpetrator As “Alleged” Or By Name
F 415.3 Inst 7 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
Return to Series 400 Table of Contents.
F 415.1 Conspiracy: Title And Identification Of Parties
F 415.1 Inst 1 Conspiracy—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 415.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 415.2 Conspiracy: Tailoring To Facts: Persons, Places, Things And Theories
F 415.2 Inst 1 Alleged Agreement Should Be Tailored To Facts
*Replace CC 415, Element 2, with the following:
2. At the time of the agreement, the defendant and [ _______________ <name[s] of alleged parties to agreement>] intended that _______________ <name of alleged party> would commit _______ <insert alleged crime[s]>;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Alleged Co-Conspirator Should Be Named—Because the defendant and at least one other person must commit all elements of conspiracy (see People v. Horn (1974) 12 C3d 290; see also FORECITE F 415.5 Inst 6), the instructions should be tailored to assure that the same person(s) are referred to in each element. (See FORECITE F 400.2 Inst 1.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.2 Inst 2 Reference To “The Crime” Should Be Tailored
*Modify CC 415, as follows:
[After “the crime” add “…which is alleged to be the object of the alleged conspiracy…” ]
Points and Authorities
Reference merely to “the crime” is vague and ambiguous. (See FORECITE F 400.2 Inst 1.)
F 415.3 Conspiracy: Language That Is Argumentative, Confusing, Etc.
F 415.3 Inst 1 Instructions Should Not Assume A Conspiracy Has Been Proven
*Modify CC 415, paragraph 3, Element 2, as follows [added language is underlined]:
2. At the time of the agreement, the defendant and [one or more of] the other alleged member[s] of the alleged conspiracy intended that one or more of them would commit __________ <insert alleged crime[s]>;
*Modify paragraph 6, sentence 1, as follows:
An overt act is an act by one or more of the members of the alleged conspiracy that is done to help accomplish the agreed upon crime.
* Modify paragraph 7 as follows:
[You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the alleged conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.]
*Modify paragraph 9, sentence 2, as follows:
[You may not find the defendant guilty of conspiracy unless all of you agree that the People have proved that the defendant conspired to commit at least one of these alleged crimes, and you all agree which alleged crime [he] [she] conspired to commit.] [You must also all agree on the degree of the crime.]
* Modify paragraph 10 as follows:
[A member of a alleged conspiracy does not have to personally know the identity or roles of all the other members.]
* Modify paragraph 11 as follows:
[Someone who merely accompanies or associates with members of a alleged conspiracy but who does not intend to commit the crime is not a member of the alleged conspiracy.]
* Modify paragraph 12 as follows:
[Evidence that a person did an act or made a statement that helped accomplish the goal of the alleged conspiracy is not enough, by itself, to prove that the person was a member of the alleged conspiracy.]
Points and Authorities
The above requests are based on the simple principle – which CALCRIM follows elsewhere (see e.g. CC 415 paragraphs 9 & 10) – that the instructions should refer to a charged crime or conspiracy as “alleged” to avoid improperly commenting on the evidence. (See FORECITE F 103.2 Inst 1; see also F 400.2 Inst 1.)
NOTE: People v. Williams (2008) 161 CA4th 705, 709-10 – which approved CALCRIM 416 – did not consider this issue. (See People v. Nguyen (2000) 22 C4th 872, 879 [cases are not authority on issues not considered]; see also People v. Dillon (1983) 34 C3d 441, 473-74 [same].)
F 415.3 Inst 2 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A “Common Purpose”
*Delete CC 415, paragraph 5, sentence 3 which provides:
An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime[s].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instructing That Agreement May Be Inferred—First, instruction on a specific evidentiary inference is argumentative. (See FORECITE F 416.3 Inst 4.)
Second, the instruction violates the federal constitution because the existence of an agreement does not more likely than not flow from commission of a crime with a common purpose. (See Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57].) For example, in every crime involving aiding and abetting liability there is a “common purpose” between the accomplices since both must intend that the target crime be committed. (See People v. Beeman (1984) 35 C3d 547; CC 401.) Yet, such a common purpose does not necessarily reflect a prior agreement to commit the crime.
Similarly, multiple direct perpetrators of a crime all must have the “common purpose” of committing that crime, yet a prior agreement is not necessarily implied from such a “common purpose.”
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.3 Inst 3 Improper Assumption Of Membership
*Modify CC 415, paragraph 4, sentence 3 as follows
An agreement may be inferred from conduct if you conclude that alleged members of the alleged conspiracy acted with a common purpose to commit the crime[s].
Points and Authorities
Assuming this sentence is not deleted (but see FORECITE F 415.4 Inst 2), reference to “members of the alleged conspiracy” is improper since there can be no “members” unless there is a conspiracy. (See generally FORECITE F 103.2 Inst 2.)
F 415.3 Inst 4 Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does “Not Have To Prove”
See FORECITE F 416.3 Inst 4.
F 415.3 Inst 5 Reference To “Formal” And “Detailed” As Erroneous And Vague
See FORECITE F 416.3 Inst 5.
F 415.3 Inst 6 Reference To Perpetrator As “Alleged” Or By Name
See FORECITE F 416.3 Inst 6.
F 415.3 Inst 7 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
See FORECITE F 416.3 Inst 7.
