SERIES 500 HOMICIDE
F 561 Homicide: Provocative Act By Accomplice
TABLE OF CONTENTS
F 561.1 Titles And Identification Of Parties
F 561.1 Inst 1 Homicide: Provocative Act By Accomplice—Title
F 561.1 Inst 2 Identification Of Prosecution And Defendant
F 561.2 Homicide: Provocative Act By Accomplice—Tailoring To Facts: Persons, Places, Things And Theories [reserved]
F 561.3 Homicide: Provocative Act By Accomplice— Language That Is Argumentative, Confusing, Etc.
F 561.3 Inst 1 Deletion Of Duplicative, Argumentative And Burden Shifting Language
F 561.3 Inst 2 Deletion Of The Term “Provocative Act Doctrine”
F 561.3 Inst 3 Degree Of Murder: Jurors Not Required To Decide
F 561.4 Homicide: Provocative Act By Accomplice—Burden Of Proof Issues
F 561.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 561.4 Inst 2 Multiple Provocative Acts: Proof Beyond A Reasonable Doubt
F 561.4 Inst 3 Accomplice Deceased—Modification Of Burden Shifting Language
F 561.5 Homicide: Provocative Act By Accomplice— Elements And Definitions
F 561.5 Inst 1 Homicide: Provocative Act by Defendant—Separate Enumeration Of Combined Elements (Element 2 and Definition of Provocative Act)
F 561.5 Inst 2 Homicide: Provocative Act by Defendant—Provocative Act Must Produce Reasonable Belief That Person Is In Actual Danger
F 561.5 Inst 3 Objective Standard Requires Consideration Of Reasonable Person In The Defendant’s “Situation”
F 561.5 Inst 4 Degree Of Murder: Clarification Of Elements
F 561.5 Inst 5 Deletion Of Term “Accomplice”
F 561.5 Inst 6 Provocative Act Doctrine: Victim’s Response Must Be Measured By A Reasonable Person In The Same Circumstances
F 561.5 Inst 7 Provocative Act Doctrine: Victim’s Response Must Be Objectively Reasonable In Light Of All The Circumstances
F 561.6 Homicide: Provocative Act By Accomplice—Defense Theories
F 561.6 Inst 1 Independent Act As Element Of Pinpoint Instruction
F 561.7 Homicide: Provocative Act By Accomplice—Preliminary Fact Issues [Reserved]
F 561.8 Homicide: Provocative Act By Accomplice—Unanimity/Duplicity/Multiplicity [Reserved]
F 561.9 Homicide: Provocative Act By Accomplice—Lesser Offense Issues
F 561.9 Inst 1 Dewberry
Return to Series 500 Table of Contents.
F 561.1 Titles And Identification Of Parties
F 561.1 Inst 1 Homicide: Provocative Act By Accomplice—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 561.1 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 561.2 Homicide: Provocative Act By Accomplice—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 561.3 Homicide: Provocative Act By Accomplice—Language That Is Argumentative, Confusing, Etc.
F 561.3 Inst 1 Deletion Of Duplicative, Argumentative And Burden Shifting Language
See FORECITE F 560.3 Inst 1.
F 561.3 Inst 2 Deletion Of The Term “Provocative Act Doctrine“
See FORECITE F 560.3 Inst 2.
F 561.3 Inst 3 Degree Of Murder: Jurors Not Required To Decide
See FORECITE F 560.3 Inst 3.
F 561.4 Homicide: Provocative Act By Accomplice—Burden Of Proof Issues
F 561.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 561.4 Inst 2 Multiple Provocative Acts: Proof Beyond A Reasonable Doubt
See FORECITE F 560.4 Inst 2.
F 561.4 Inst 3 Accomplice Deceased—Modification Of Burden Shifting Language
*Replace CC 561 “Accomplice Deceased“ paragraph with the following:
The prosecution must prove that the death of _____________<name of decedent> was caused by a provocative act committed by ______________<name of alleged provocateur>. The defense contends that the only provocative act which caused ____________‘s <decedent’s> death was committed by _____________<name of deceased coparticipant>. However, the defendant does not need to prove this contention.
If you have a reasonable doubt whether the prosecution has prove that a provocative act by ______________<name of alleged provocateur> caused the death of _____________<name of decedent>, 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.]
The CALCRIM Deficiency—CALCRIM 561 unconstitutionally implies that the evidence must establish that the deceased participant committed the only provocative act which caused the death. (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 561.5 Homicide: Provocative Act By Accomplice—Elements And Definitions
F 561.5 Inst 1 Homicide: Provocative Act by Defendant—Separate Enumeration Of Combined Elements (Element 2 and Definition of Provocative Act)
*Modify CC 561, Element 2 and paragraph 3 (definition of provocative act) as follows [added language is underlined; deleted language is stricken]:
2. In (committing/ [or] attempting to commit) __________ <insert underlying crime>, <insert name[s] or description[s] of alleged provocateur[s]> intentionally did a provocative act;
3. 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.
3 4. __________ <insert name[s] or description[s] of alleged provocateur[s]> 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;
5 6. In response to __________‘s <insert name[s] or description[s] of alleged provocateur[s]> provocative act, __________ <insert name or description of third party> killed __________ <insert name of decedent>;
AND
6 7. __________‘s <insert name of decedent> death was the natural and probable consequence of __________‘s <insert name[s] or description[s] of alleged provocateur[s]> provocative act.
Points and Authorities
See FORECITE F 560.5 Inst 1.
F 561.5 Inst 2 Homicide: Provocative Act by Defendant—Provocative Act Must Produce Reasonable Belief That Person Is In Actual Danger
See FORECITE F 560.5 Inst 2.
F 561.5 Inst 3 Objective Standard Requires Consideration Of Reasonable Person In The Defendant‘s “Situation“
See FORECITE F 560.5 Inst 3.
F 561.5 Inst 4 Degree Of Murder: Clarification Of Elements
See FORECITE F 560.5 Inst 4.
F 561.5 Inst 5 Deletion Of Term “Accomplice“
*Modify CC 561, Title, as follows [added language is underlined; deleted language is stricken]:
Homicide: Provocative Act by Accomplice ________________<insert name of alleged accomplice>.
*Modify CC 561, Element 1, as follows
1. The defendant was an accomplice of aided and abetted __________ <insert name[s] or description[s] of alleged provocateur[s]> in (committing/ [or] attempting to commit) __________ <insert underlying crime> by;
[Insert elements of aiding and abetting.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
No Reference To The Term “Accomplice“—It is potentially prejudicial surplusage to use the term “accomplice.“ The jurors‘ only concern should be whether the prosecution proven the elements of aiding and abetting. Thus, the elements of aiding and abetting should be incorporated into Element 1 or CC 561. [See FORECITE F 335 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.
F 561.5 Inst 6 Provocative Act Doctrine: Victim‘s Response Must Be Measured By A Reasonable Person In The Same Circumstances
See FORECITE F 560.5 Inst 5.
F 561.5 Inst 7 Provocative Act Doctrine: Victim‘s Response Must Be Objectively Reasonable In Light Of All The Circumstances
See FORECITE F 560.5 Inst 6.
F 561.6 Homicide: Provocative Act By Accomplice—Defense Theories
F 561.6 Inst 1 Independent Act As Element Of Pinpoint Instruction
See FORECITE F 560.6 Inst 1.
F 561.7 Homicide: Provocative Act By Accomplice—Preliminary Fact Issues [Reserved]
F 561.8 Homicide: Provocative Act By Accomplice—Unanimity/Duplicity/Multiplicity [Reserved]
F 561.9 Homicide: Provocative Act By Accomplice—Lesser Offense Issues
F 561.9 Inst 1 Dewberry
See FORECITE F 560.9 Inst 1.
