SERIES 500 HOMICIDE
F 548 Murder: Alternative Theories
TABLE OF CONTENTS
F 548.1 Titles And Identification Of Parties
F 548.1 Inst 1 Murder: Alternative Theories—Title
F 548.1 Inst 2 Identification Of Prosecution And Defendant
F 548.2 Instructions
F 548.2 Inst 1 Murder: Alternative Theories— Jurors Must All “Find” That The Prosecution Has Proved All Elements Of At Least One Theory Beyond A Reasonable Doubt
F 548.2 Inst 2 Murder: Alternative Theories— Clarification Of Each Jurors Process For Finding Every Element Of At Least One Prosecution Theory
F 548.2 Inst 3 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished
F 548.9 Murder: Alternative Theories— Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 548.1 Titles And Identification Of Parties
F 548.1 Inst 1 Murder: Alternative Theories— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 548.1 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 548.2 Murder: Alternative Theories— Tailoring To Facts: Persons, Places, Things And Theories
F 548.2 Inst 1 Murder: Alternative Theories— Jurors Must All “Find” That The Prosecution Has Proved All Elements Of At Least One Theory Beyond A Reasonable Doubt
*Modify CC 548, paragraph 3, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You may not find the defendant guilty of murder unless all of you agree find that the People have proved that the defendant committed murder under by proving every element of at least one of these theories beyond a reasonable doubt.
Points and Authorities
CALCRIM 548 fails to expressly require the jurors to “find” “every element” of a prosecution theory before relying on it to convict. (See FORECITE F 415.8 Inst 1.)
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 548.2 Inst 2 Murder: Alternative Theories—Clarification Of Each Juror’s Process For Finding Every Element Of At Least One Prosecution Theory
*Add to CC 548:
No juror may convict the defendant of murder unless that juror finds that the prosecution has proven one or both of the following beyond a reasonable doubt:
1. Every element of malice aforethought murder as required by Instruction(s) _____.
AND/OR
2. Every element of felony murder as required by Instruction(s) ________.
The jury may not return a verdict of guilty as to Count _____, ____________ <e.g., first degree murder> unless all twelve jurors have voted for guilt on that [count] [charge].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 548 fails to provide a process or mechanism to assure that each juror finds all required elements to be proven beyond a reasonable doubt. (Compare CC 3517 and CC 3518 [express, detailed deliberation process for greater and lesser offenses or of degrees of guilt].) For example, the deficiencies of CC 548 include the failure to: (1) refer the jurors to the specific instructions defining each alternative theory, (2) state the rule in terms of each juror’s voting decision, and (3) expressly relate the elements of the alternative to the prosecutions burden of proof.
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 548.2 Inst 3 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished
*Add to CC 548 when appropriate:
However, you need to all agree as to which of the following acts, if any, the prosecution has proven beyond a reasonable doubt:
[Insert facts requiring unanimity.]
Therefore, you should take a separate vote for each of the above acts with each juror (e.g., has the prosecution proven the defendant guilty of murder based on Act 1; has the prosecution proven the defendant guilty of murder based on Act 2, etc.).
Unless all twelve jurors vote for guilt based on the same act or acts, you must return a verdict of not guilty. If one or more jurors cannot decide which way to vote, then you may not return a verdict of guilty or not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 548 fails to expressly inform the jurors as to the distinction between theories which do not require unanimity and discrete facts which do. Although CC 3500 is to be used for the latter, reference to the distinction should be included in CC 548 to assure juror understanding of this complex and non-intuitive legal principle.
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.]
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 548.9 Murder: Alternative Theories—Lesser Offense Issues [Reserved]
