SERIES 500 HOMICIDE
F 560 Homicide: Provocative Act by Defendant
TABLE OF CONTENTS
F 560.1 Titles And Identification Of Parties
F 560.1 Inst 1 Homicide: Provocative Act by Defendant—Title
F 560.1 Inst 2 Identification Of Prosecution And Defendant
F 560.2 Homicide: Provocative Act by Defendant—Tailoring To Facts: Persons, Places, Things And Theories [RESERVED]
F 560.3 Homicide: Provocative Act by Defendant—Language That Is Argumentative, Confusing, Etc.
F 560.3 Inst 1 (a & b) Deletion Of Duplicative, Argumentative And Burden Shifting Language
F 560.3 Inst 2 Deletion Of The Term “Provocative Act Doctrine”
F 560.3 Inst 3 Degree Of Murder: Jurors Not Required To Decide
F 560.4 Homicide: Provocative Act by Defendant—Burden Of Proof Issues
F 560.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 560.4 Inst 2 Multiple Provocative Acts: Proof Beyond A Reasonable Doubt
F 560.5 Homicide: Provocative Act by Defendant—Elements And Definitions
F 560.5 Inst 1 Homicide: Provocative Act by Defendant— Separate Enumeration Of Combined Elements (Element 1 and Definition of Provocative Act)
F 560.5 Inst 2 (a & b) Homicide: Provocative Act by Defendant—Provocative Act Must Produce Reasonable Belief That Person Is In Actual Danger
F 560.5 Inst 3 Objective Standard Requires Consideration Of Reasonable Person In The Defendant’s “Situation”
F 560.5 Inst 4 Degree Of Murder: Clarification Of Elements
F 560.5 Inst 5 Provocative Act Doctrine: Victim’s Response Must Be Measured By A Reasonable Person In The Same Circumstances
F 560.5 Inst 6 Provocative Act Doctrine: Victim’s Response Must Be Objectively Reasonable In Light Of All The Circumstances
F 560.6 Homicide: Provocative Act by Defendant—Defense Theories
F 560.6 Inst 1 (a & b) Independent Act As Element Of Pinpoint Instruction
F 560.7 Homicide: Provocative Act by Defendant— Preliminary Fact Issues [Reserved]
F 560.8 Homicide: Provocative Act by Defendant—Unanimity/Duplicity/Multiplicity [Reserved]
F 560.9 Homicide: Provocative Act by Defendant—Lesser Offense Issues
F 560.9 Inst 1 Dewberry
Return to Series 500 Table of Contents.
F 560.1 Titles And Identification Of Parties
F 560.1 Inst 1 Homicide: Provocative Act by Defendant— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 560.1 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 560.2 Homicide: Provocative Act by Defendant—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 560.3 Homicide: Provocative Act by Defendant—Language That Is Argumentative, Confusing, Etc.
F 560.3 Inst 1 (a & b) Deletion Of Duplicative, Argumentative And Burden Shifting Language
Alternative a:
*Replace CC 560, paragraph 1, sentence 2 and paragraph 2, sentence 1, with the following:
If you have a reasonable doubt that the defendant [or _____________<name of co-participant alleged to have committed the killing per CC 540B>], you may not convict the defendant of murder unless the prosecution proves beyond a reasonable doubt that:
[Insert elements.]
*Alternative b:
*Modify CC 560, paragraph 1, sentence 3 as follows [deleted language is stricken]:
A person can be guilty of murder under the provocative act doctrine even if someone else did the actual killing.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Duplicative—(See FORECITE F 416.3 Inst 4.) Additionally, use of the term “provocative act doctrine” is unnecessary surplusage. The name of the doctrine is no concern of the jurors whose only duty is to decide if the required elements have been proven beyond a reasonable doubt.
Argumentative—See FORECITE F 416.3 Inst 4.
Burden Shifting—See FORECITE F 404.2 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 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 560.3 Inst 2 Deletion Of The Term “Provocative Act Doctrine”
*Modify CC 560, paragraph 1, sentence 3 as follows:
A person can be guilty of murder under the provocative act doctrine even if someone else did the actual killing.
Points and Authorities
See FORECITE F 560.3 Inst 1.
F 560.3 Inst 3 Degree Of Murder: Jurors Not Required To Decide
*Modify CC 560, paragraph 8, re: Degree of Murder, as follows [added language is underlined]:
[If you decide that the defendant is guilty of murder, you must decide, if you can, whether the murder is first or second degree.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 560.4 Homicide: Provocative Act by Defendant—Burden Of Proof Issues
F 560.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 560.4 Inst 2 Multiple Provocative Acts: Proof Beyond A Reasonable Doubt
*Modify CC 560, paragraph 6, sentence 2 re: multiple provocative acts, as follows [added language is underlined]:
You may not find the defendant guilty unless you all agree that the People have proved beyond a reasonable doubt that the defendant committed at least one of these acts.
Points and Authorities
See CALCRIM Motion Bank # CCM-_________.
F 560.5 Homicide: Provocative Act By Defendant— Elements And Definitions
F 560.5 Inst 1 Homicide: Provocative Act by Defendant—Separate Enumeration Of Combined Elements (Element 1 and Definition of Provocative Act)
*Modify CC 560, Element 1 and paragraph 3 (definition of provocative act) as follows [added language is underlined; deleted language is stricken]:
1. In (committing/ [or] attempting to commit) __________ <insert underlying crime>, the defendant intentionally did a provocative act;
2. The defendant intentionally did a provocative act;:
1 A. [That goes went beyond what is was necessary to accomplish the __________ <insert underlying crime>;]
[AND
2 B.] Whose natural and probable consequences are were dangerous to human life, because there is was a high probability that the act will would provoke a deadly response.
2 3. The defendant knew that the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life because there was a high probability that the act would provoke a deadly response;
4. Then acted committed the provocative act with conscious disregard for life;
3 5. In response to the defendant‘s provocative act, __________ <insert name or description of third party> killed <insert name of decedent>;
AND
4 6. _______________‘s <insert name of decedent> death was the natural and probable consequence of the defendant‘s provocative act.
Points and Authorities
Separately Enumerating Elements—See FORECITE F 3500.2 Inst 1.
Adding Definition To Element—See FORECITE F 417.5 Inst 2.
Tailoring To Facts: See FORECITE F 400.2 Inst 2.
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.
F 560.5 Inst 2 (a & b) Homicide: Provocative Act By Defendant—Provocative Act Must Produce Reasonable Belief That Person Is In Actual Danger
Alternative a:
*Add to CC 560, definition of provocative act:
To be sufficiently provocative, the act must have caused [_____________ <name of provoked person>] [the provoked person] to reasonably believe he or she was in immediate danger of great bodily injury or death.
Alternative b:
*Add as Element 4 of causation instruction:
4. The person responding to defendant‘s act [reasonably believed he or she was in immediate danger of death or great bodily injury] [responded reasonably].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Reasonable Response Required—For the provocative act doctrine to apply the “victim” must “kill in reasonable response to [the provocative] act….” (In re Tyrone B. (1976) 58 CA3d 884, 888; see also People v. Gallegos (1997) 54 CA4th 453; People v. Karapetyan (2003) 106 CA4th 609 [defendant‘s attempts to kill or assault someone with a firearm are by themselves provocative acts likely to draw a deadly response].)
In other words, the act must be sufficient to produce a reasonable belief that the person is in great danger. (See In re Joe R. (1980) 27 C3d 496, 506-07; see also People v. Gardner (1993) 37 CA4th 473, 481 [“reasonable response” issue should be addressed in causation instructions].)
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 560.5 Inst 3 Objective Standard Requires Consideration Of Reasonable Person In The Defendant‘s “Situation”
*Modify CC 560, paragraph 4, Element 1, as follows [added language is underlined; deleted language is stricken]:
[Change “position” to “situation” ]
Points and Authorities
See FORECITE F 820.5 Inst 3.
F 560.5 Inst 4 Degree Of Murder: Clarification Of Elements
*Modify CC 560, paragraph 8, re: Degree of Murder, as follows [added language is underlined; deleted language is stricken]:
[If you decide find that the defendant is guilty of murder, you must decide, if you can, whether the murder is first or second degree.
To prove that the defendant is guilty of first degree murder, the People must prove beyond a reasonable doubt that:
1. The prosecution has proven beyond a reasonable doubt every element of murder based on a provocative act as set forth above;
1 2. As a result of the defendant‘s provocative act, __________ <insert name of decedent> was killed during the commission of ______________<insert Pen. Code, §189 felony>;
AND
2 3. Defendant intended to commit __________ <insert Pen. Code, §189 felony> when (he/she) did the provocative act.
[Delete next paragraph]
To prove that the defendant intended to commit _______________<insert Pen. Code, §189 felony>, the prosecution must prove beyond a reasonable doubt that:
[Insert elements of PC 189 felony.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Element 1—This element makes it clear that the degree elements are above and beyond all the elements necessary to find the murder itself.
No Cross Reference To Elements Of Predicate Felony—See FORECITE F 1000.5 Inst 6.
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 560.5 Inst 5 Provocative Act Doctrine: Victim‘s Response Must Be Measured By A Reasonable Person In The Same Circumstances
*Add to CC 560:
The response of _________________ <name of person responding to the provocative act> to the alleged provocative act must have been objectively reasonable under the circumstances. This requires the prosecution to prove that a reasonable person in the same circumstances as ______________ <name of responding person> [and knowing what ______________ <name of responding person> knew] would have responded as did ______________ <name of responding person>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Reasonable Person Standard—People v. Briscoe (2001) 92 CA4th 568 held that, under the provocative act doctrine, the inquiry should focus on an “objective view of the facts” rather than on the “crime victim‘s state of mind.” (Briscoe, 92 CA4th at 593.) An essential part of such an objective inquiry must be whether the victim‘s response was objectively reasonable which should require a jury determination of whether a reasonable person in the victim‘s situation would have responded as did the victim. (See e.g., People v. Humphrey (1996) 13 C4th 1073, 1083.) [See also FORECITE F 820.5 Inst 3.]
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 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.
CALJIC NOTE: See FORECITE F 8.12d.
F 560.5 Inst 6 Provocative Act Doctrine: Victim‘s Response Must Be Objectively Reasonable In Light Of All The Circumstances
*Add to CC 560 [CC 505 Format]:
Because the response of ___________ <name of person who killed the victim> must have been a reasonably foreseeable cause of the killing, ___________ <name of person who killed the victim> must have acted objectively reasonable in light of all the circumstances.
When deciding whether the response was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Reasonable Response— Courts use the term “reasonable response” as a shorthand expression of the principle that the killing must—on an objective view of the factsC be proximately caused by the defendant‘s acts. (See People v. Gardner (1995) 37 CA4th 473, 478-479; see also Pizano v. Superior Court (1978) 21 C3d 128, 137-139.) Therefore, since causation requires a consideration of foreseeability, causation should be defined in terms of objective reasonableness. (See e.g., CALCRIM 505, paragraph 3.) [See also FORECITE F 820.5 Inst 3.]
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.
CALJIC NOTE: See FORECITE F 8.12e.
F 560.6 Homicide: Provocative Act by Defendant—Defense Theories
F 560.6 Inst 1 (a & b) Independent Act As Element Of Pinpoint Instruction
Alternative a:
*Modify CC 560 “Independent Criminal Act” instruction as follows: delete CALCRIM language and add the following to the enumerated elements:
The killing was not caused by the independent act of someone other than ____________ <insert name(s) of defendant‘s co-participants>. [An independent criminal act is a free, deliberate, and informed criminal act.]
Alternative b [Pinpoint]:
The defense contends that the killing was caused solely by the independent criminal act of ______________ <insert persons alleged to have committed the killing>. The defendant does not have to prove this contention. Instead, the prosecution must disprove it. If you have a reasonable doubt as to whether the prosecution has met this burden, you must not convict the defendant of murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Improper Shifting Of Burden—The CALCRIM language improperly shifts the burden of proof by implying that it must be shown that the killing was committed by an independent criminal act. (See FORECITE F 404.2 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 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 560.7 Homicide: Provocative Act by Defendant—Preliminary Fact Issues [Reserved]
F 560.8 Homicide: Provocative Act by Defendant—Unanimity/Duplicity/Multiplicity [Reserved]
F 560.9 Homicide: Provocative Act by Defendant—Lesser Offense Issues
F 560.9 Inst 1 Dewberry
*Modify CC 560, second to last paragraph as follows:
Alternative a:
If you are satisfied beyond a reasonable doubt that the defendant committed a criminal offense, but you have a reasonable doubt whether the offense committed was __________ <insert greater offense> or __________ <insert lesser offense>, you must give the defendant the benefit of the doubt and find [him] [her] guilty of __________ <insert lesser offense>.
Alternative b [Degree Format; CJ 17.11]:
If you find the defendant guilty of the crime of __________________, but have a reasonable doubt as to whether it is of the greater or lesser degree, you must find (him/her) guilty of that crime in the lesser degree.
Points & Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Dewberry Instruction—See FORECITE F 3517 Inst 2.
