SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 420 WITHDRAWAL FROM CONSPIRACY
TABLE OF CONTENTS
F 420.1 WITHDRAWAL FROM CONSPIRACY: TITLE AND IDENTIFICATION OF PARTIES
F 420.1 Inst 1 Withdrawal From Conspiracy— Title
F 420.1 Inst 2 Identification Of Prosecution And Defendant
F 420.2 Withdrawal From Conspiracy: Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 420.3 WITHDRAWAL FROM CONSPIRACY: LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 420.3 Inst 1 Deletion Of Argumentative Language
F 420.4 WITHDRAWAL FROM CONSPIRACY: BURDEN OF PROOF ISSUES
F 420.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 420.4 Inst 2 Conspiracy: Withdrawal Before Commission Of Overt Act—Prosecution Burden
F 420.4 Inst 3 Correction Of Burden Shifting Language
F 420.4 Inst 4 Withdrawal From Conspiracy: Who Has Burden Of Proof
F 420.4 Inst 5 Conspiracy: If Jurors Have A Reasonable Doubt Whether Or Not Defendant Withdrew They Must Acquit
F 420.5 WITHDRAWAL FROM CONSPIRACY: ELEMENTS [RESERVED]
F 420.6 WITHDRAWAL FROM CONSPIRACY: DEFENSE THEORIES [RESERVED]
F 420.7 WITHDRAWAL FROM CONSPIRACY: PRELIMINARY FACT ISSUES [RESERVED]
F 420.8 WITHDRAWAL FROM CONSPIRACY: UNANIMITY/DUPLICITY/MULTIPLICITY [RESERVED]
F 420.9 WITHDRAWAL FROM CONSPIRACY: LESSER OFFENSE ISSUES [RESERVED]
Return to Series 400 Table of Contents.
F 420.1 Withdrawal From Conspiracy: Title And Identification Of Parties
F 420.1 Inst 1 Withdrawal From Conspiracy— Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 420.1 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 420.2 Withdrawal From Conspiracy: Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 420.3 Withdrawal From Conspiracy: Language That Is Argumentative, Confusing, Etc.
F 420.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 420, paragraph 2, as follows [deleted language is stricken]:
[A failure to act is not sufficient alone to withdraw from a conspiracy.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 420.4 Withdrawal From Conspiracy: Burden Of Proof Issues
F 420.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 420.4 Inst 2 Conspiracy: Withdrawal Before Commission Of Overt Act—Prosecution Burden
*Add to CC 420:
The prosecution has the burden of proving that the first three elements upon which I instructed you: (1) intent to agree; (2) party to agreement and (3) intent that intended crime be committed, were all proven and in existence [concurrently with] [at the time] the overt act was committed. Unless the prosecution has met this burden, the defendant cannot be convicted of conspiracy regardless of when or [he] [she] withdrew from the alleged conspiracy.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Conspiracy Does Not Exist Until All Elements, Including The Overt Act, Has Been Satisfied—The Bench Notes to CALCRIM 420 state that there is no authority regarding the burden of proof as to withdrawal from a conspiracy.
However, because there is no conspiracy until an overt act is committed, the prosecution should be required to prove that, during the commission of the required overt act, the defendant and at least one other alleged co-conspirator (1) was a party to the agreement; (2) intended to agree; and (3) intended that the intended crime be committed. Otherwise the required element of concurrence of act and intent/mental state has not been proven. In other words, prior to the commission of the overt act, there is no conspiracy from which to withdraw. (See PC 20; see also People v. Horn (1974) 12 C3d 290.)
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 # CCM-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 4.1 [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 420.4 Inst 3 Correction Of Burden Shifting Language
*Modify CC 420, paragraph 1, as follows
The defendant is not guilty of conspiracy to commit _______ <insert target offense> if unless the prosecution proves beyond a reasonable doubt that (he/she) withdrew the defendant did not withdraw from the alleged conspiracy before any overt act was committed. To withdraw from a conspiracy, This requires the prosecution to prove beyond a reasonable doubt that the defendant must did not truly and affirmatively reject the conspiracy and communicate that rejection, by word and/or by deed, to the other members of the conspiracy known to the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Relate Withdrawal To Burden Of Proof—The defense theory of withdrawal from a conspiracy negates an element of the conspiracy charge, namely membership in the conspiracy. (See Cantoni, Withdrawal from Conspiracy: A Constitutional Allocation of Evidentiary Burdens (1982) 51 Fordham L.Rev. 438, 440; see also People v. Belmontes (1988) 45 C3d 744, 791.) Membership in the conspiracy—or more precisely, the existence of participation in an agreement meeting the legal criteria for conspiracy—is an essential element of the offense. The methods of proving that element and instructions on those methods might differ somewhat for a defense that the defendant was never in the conspiracy, as against a defense that the defendant was once in the conspiracy but met the strict legal standards for withdrawal. But in the end, it‘s two different methods underlying the same element.
Hence, the defense should have the right to a defense theory instruction on withdrawal which specifically relates the prosecution‘s burden of proof to the defense theory. (See People v. Tewksbury (1976) 15 C3d 953, 963; see also FORECITE F 315.1.2 Inst 2.)
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 # CCM-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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates ]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 420.4 Inst 4 Withdrawal From Conspiracy: Who Has Burden Of Proof
ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its December 2008 revisions.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The Prosecution Should Be Required To Prove That The Defendant Did Not Withdraw Because It Bears On The Legality Of The Defendant’s Conduct—See FORECITE F 3403 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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 420.4 Inst 5 Conspiracy: If Jurors Have A Reasonable Doubt Whether Or Not Defendant Withdrew They Must Acquit
*Modify CC 420 as follows [added language is underlined; deleted language is stricken]:
[The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw from the conspiracy [before an overt act was committed]. If the People have not met this burden, If you have a reasonable doubt whether or not _______________ <name of defendant> withdrew from the conspiracy, you must find the defendant not guilty of conspiracy. [If the People have not met this burden, If you have a reasonable doubt whether or not _______________ <name of defendant> withdrew from the conspiracy, you must also find the defendant not guilty of the additional acts committed after (he/she) withdrew.]]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Burden Of Proof Expressed In Terms Of Reasonable Doubt – People v. Fin (2008) 165 CA4th 360, 386-87 concluded that CC 420 does not adequately state the burden of proof as to withdrawal. “The proper burden would be explained by the trial court indicating that if the jury had a reasonable doubt whether or not the defendant effectively withdrew, they should acquit.” (Ibid.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note – If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
F 420.5 Withdrawal From Conspiracy: Elements [Reserved]
F 420.6 Withdrawal From Conspiracy: Defense Theories [Reserved]
F 420.7 Withdrawal From Conspiracy: Preliminary Fact Issues [Reserved]
F 420.8 Withdrawal From Conspiracy: Unanimity/Duplicity/Multiplicity [Reserved]
F 420.9 Withdrawal From Conspiracy: Lesser Offense Issues [Reserved]
