SERIES 600 ATTEMPTED MURDER
F 627
TABLE OF CONTENTS
F 627 Inst 1 Modification Of Hallucination Instruction For Attempted Murder Cases
F 627 Inst 2 Jurors Must Consider Hallucination Evidence
F 627 Inst 3 Defendant Must Have Acted Willfully And With Deliberation And Premeditation
F 627 Inst 4 Jurors Only Required To “Decide” The Premeditation/Deliberation Issue “If They Can”
F 627 Inst 5 Concurrences Of Act And Intent/Mental State
Return to Series 600 Table of Contents.
F 627 Inst 1 Modification Of Hallucination Instruction For Attempted Murder Cases
*In attempted murder cases modify CC 627, ¶ 3 sentence 2 to provide as follows [added language is underlined; deleted language is stricken]:
If the People have not met this burden, you must find the defendant not guilty of first degree murder allegation that the defendant committed [attempted] murder willfully, and with premeditation and deliberation to be untrue.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
The CALCRIM Deficiency – As written CC 627 applies to completed murder cases. However, the instruction may also be appropriate in cases which charge attempted murder with premeditation and deliberation. In such cases the last sentence should be revised as set forth above.
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.
F 627 Inst 2 Jurors Must Consider Hallucination Evidence
*Modify CC 627 as follows [added language is underlined; deleted language is stricken]:
You may Consider evidence of hallucinations, if any, in deciding – – if you can – – whether the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation.
The People have the burden of proving beyond a reasonable doubt that the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree 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 (“You May” Should Be Deleted) – Jurors should not be allowed to simply ignore or not consider evidence that has been presented. (See Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence].) For example, an instruction on a defense theory such as voluntary intoxication is defective if it informs the jury that consideration is permissive rather than mandatory. (See FORECITE F 4.21e; cf. United States v. Marcucci (9th Cir. 2002) 299 F3d 1156 [stating that the grand jury “should” – rather than “shall” or “must”– indict if it finds probable cause, “leaves room – albeit limited room – for a grand jury to reject an indictment that, although supported by probable cause, is based on governmental passion, prejudice, or injustice”].)
Consistent with the above principles correctly admonish the jurors to “consider” relevant factors and circumstances. (See, e.g., CC 103 [“… consider all the evidence that was received throughout the entire trial”]; CC 105 [“Consider the testimony of each witness …”]; CC 240 [“In deciding whether a consequence is natural or probably, consider all the circumstances …”]; CC 315 [“In evaluating identification testimony, consider the following questions: . . .”]; CC 330 [“When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate”]; CC 375 [“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s]”]; CC 571 [“In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant”]; CC 590 [“In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence”].)
See also FORECITE F 105.2 Inst 1.
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]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 627 Inst 3 Defendant Must Have Acted Willfully And With Deliberation And Premeditation
*Modify CC 627 as follows [added language is underlined; deleted language is stricken]:
You may Consider evidence of hallucinations, if any, in deciding – – if you can – – whether the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation.
The People have the burden of proving beyond a reasonable doubt that the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree 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: Defendant Must Have Acted Willfully And With Deliberation And Premeditation – The jury must make separate findings that the defendant acted willfully, with deliberation, and with premeditation. (See CC 521.)
Delete “You May” – See FORECITE F 627 Inst 2.
“If You Can” – See FORECITE F 627 Inst 4.
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:
FORECITECG 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 627 Inst 4 Jurors Only Required To “Decide” The Premeditation/Deliberation Issue “If They Can”
*Modify CC 627 as follows [added language is underlined; deleted language is stricken]:
You may Consider evidence of hallucinations, if any, in deciding – if you can — whether the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation.
The People have the burden of proving beyond a reasonable doubt that the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree 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: Improper Implication That Jurors Must Decide The Issue – See FORECITE F 100.7 Inst 1.
F 627 Inst 5 Concurrence Of Act And Intent/Mental State
*Modify CC 627 as follows [added language is underlined; deleted language is stricken]:
You may Consider evidence of hallucinations, if any, in deciding – if you can — whether the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation.
The People have the burden of proving beyond a reasonable doubt that the defendant acted [murdered] [attempted to murder] ________ <insert name of alleged victim> willfully and with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree 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’s use of the terms “defendant acted” fails to assure that the required intent and mental state concurred with the precise acts which constituted the actus reus of the charged crime. Thus, the requested modification is appropriate under PC 20 and the well settled jurisprudence interpreting that statute. (See FORECITE F 251 Inst 3.)
Deleted “You May” – See FORECITE F 627 Inst 2.
Add “If You Can” – See FORECITE F 627 Inst 4.
Willfully And With Deliberation And Premeditation – See FORECITE F 627 Inst 3.
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]
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.
