SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 417.1 LIABILITY FOR CO-CONSPIRATORS’ ACTS: TITLE AND IDENTIFICATION OF PARTIES
F 417.2 LIABILITY FOR CO-CONSPIRATORS’ ACTS: TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 417.3 LIABILITY FOR CO-CONSPIRATORS’ ACTS LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
TABLE OF CONTENTS
F 417.1 LIABILITY FOR CO-CONSPIRATORS’ ACTS: TITLE AND IDENTIFICATION OF PARTIES
F 417.1 Inst 1 Liability for Co-Conspirators‘ Acts—Title
F 417.1 Inst 2 Identification Of Prosecution And Defendant
F 417.2 LIABILITY FOR CO-CONSPIRATORS’ ACTS: TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 417.2 Inst 1 Tailoring; Requiring Finding That Defendant And Alleged Co-Conspirators Are Guilt Of Underlying Conspiracy
F 417.3 LIABILITY FOR CO-CONSPIRATORS’ ACTS LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 417.3 Inst 1 Deletion Of Duplicative Language
F 417.3 Inst 2 Membership In Conspiracy As Misleading Terminology
F 417.3 Inst 3 Deletion Of Duplicative And Argumentative Language
F 417.3 Inst 4 Deletion Of Duplicative And Argumentative Sentences
F 417.3 Inst 5 If Not Deleted, Argumentative Language Should Be Balanced
F 417.3 Inst 6 Balance Argumentative Language
Return to Series 400 Table of Contents.
F 417.1 Liability for Co-Conspirators’ Acts: Title And Identification Of Parties
F 417.1 Inst 1 Liability for Co-Conspirators’ Acts—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 417.1 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 417.2 Liability for Co-Conspirators’ Acts: Tailoring To Facts: Persons, Places, Things And Theories
F 417.2 Inst 1 Tailoring; Requiring Finding That Defendant And Alleged Co-Conspirators Are Guilty Of Underlying Conspiracy
*Replace CC 417, Element 1 and 2, with the following:
1. The defendant is guilty of the crime of conspiracy under Instruction ___ of these instructions.
AND
2. _______________ <name of alleged co-conspirator> is guilty of conspiracy, Instruction ____ of these instructions, based on (his/her) participation in the same conspiracy as did the defendant.
3. _______________ <name of alleged co-conspirator> committed _______________ <insert non-target offense> to further the above conspiracy.
[Renumber Remaining Elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requiring Guilt As To Predicate Conspiracy—CALCRIM 417 fails to expressly require the jury to find that all elements of the crime of conspiracy have been proven as to both the defendant and alleged co-conspirator. (See People v. Horn (1974) 12 C3d 290.)
Tailoring—CALCRIM 417 fails to specify which co-conspirator is alleged to have committed the non-target offense. This fails to provide notice to the defendant and to assure that all elements of conspiracy have been proven as to a single specified co-conspirator. (See FORECITE F 400.2 Inst 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 3.7 [Failure To Tailor Elements To The Facts And Charge]
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 417.3 Liability for Co-Conspirators’ Acts Language That Is Argumentative, Confusing, Etc.
F 417.3 Inst 1 Deletion Of Duplicative Language
*Modify CC 417 as follows:
[DELETE PARAGRAPHS 1-4]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Duplicative Language Should Be Deleted—Paragraphs 1-4 of CALCRIM 417 simply repeat the rules which are incorporated in the definition of Elements in paragraphs 5, 6 and 7. Hence, paragraphs 1-4 should be deleted as duplicative. (See FORECITE F 416.3 Inst 4.)
If Retained The Language Should Be Tailored To The Facts—Moreover, paragraphs 1-4 are not specifically tailored to what the prosecution must prove and, hence, could confuse the jurors and/or mislead them into shifting the burden of proof. (See FORECITE F 400.2 Inst 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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.3 Inst 2 Membership In Conspiracy As Misleading Terminology
*Modify CC 417, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
A member of a person who commits the crime of conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy co-conspirator commits the crime.
*Modify paragraph 2, as follows:
A member of a person who commits the crime of conspiracy is also criminally responsible for any act of any member co-conspirator of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. [Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act.]
*Modify paragraph 4, as follows:
A member of a person who is not guilty of conspiracy is not criminally responsible for the act of another member a co-conspirator if that act does not further the common plan or is not a natural and probable consequence of the common plan.
*Modify paragraph 5, as follows:
[The defendant is not responsible for the acts of another person who was not a member co-conspirator of the conspiracy even if the acts of the other person helped accomplish the goal of the conspiracy.]
*Modify paragraph 6, as follows:
[A conspiracy member person who is guilty of conspiracy is not responsible for the acts of other conspiracy members co-conspirators that are done after the goal of the conspiracy had been accomplished.]
*Add to CC 417:
For the purposes of these instructions, a co-conspirator means a person who is guilty of conspiracy based on participating in the same conspiracy in which the defendant is alleged to have participated.
Points and Authorities
See FORECITE F 415.5 Inst 1.
F 417.3 Inst 3 Deletion Of Duplicative And Argumentative Language
*Modify CC 417 as follows:
[Delete paragraphs 1-3.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 417.3 Inst 4 Deletion Of Duplicative And Argumentative Sentences
*Modify CC 417, paragraph 2, sentences 2 and 3, as follows [deleted language is stricken]:
A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. [Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act.]
Points and Authorities
It is duplicative and argumentative to instruct the jurors as to matters which the prosecution does not have to prove. (See FORECITE F 416.3 Inst 4.)
F 417.3 Inst 5 If Not Deleted, Argumentative Language Should Be Balanced
*Modify CC 417, paragraph 2, sentence 2, as follows [added language is underlined]:
This rule applies even if the act was not intended as part of the original plan. However, whether or not the act was intended as part of the original plan is a factor to consider on the question of whether the [alleged] _______________ <insert non-target offense> was:
1. Committed to further the conspiracy; and
2. A natural and probable consequence of the common plan or design of the _______________ <insert target offense>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Juror Consideration Of Whether The Criminal Act Was Part Of The Original Agreement—Whether or not the criminal act was part of the original plan is logically relevant to whether or not the prosecution has proven the existence of a conspiracy. Hence, CALCRIM 417 should be modified to assure that the jurors do not view it as the judge‘s opinion that this question should not be considered. (See FORECITE F 416.3 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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.3 Inst 6 Balance Argumentative Language
*Modify CC 417, paragraph 2, sentence 3, as follows [added language is underlined]:
[Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. However, whether or not the defendant was present at the time of the act is a factor to consider on the question of whether the [alleged] _______________ <insert non-target offense> was:
1. Committed to further the conspiracy; and
2. A natural and probable consequence of the common plan or design of the _______________ <insert target offense>.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Juror Consideration Of Whether Defendant Was Present—Whether or not the defendant was present at the time of the act is logically relevant to whether or not the prosecution has proven the existence of a conspiracy. Hence, CALCRIM 417 should be modified to assure that the jurors do not view it as the judge‘s opinion that this question should not be considered. (See FORECITE F 416.3 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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
