SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 702 SPECIAL CIRCUMSTANCES: INTENT REQUIREMENT FOR ACCOMPLICE AFTER JUNE 5, 1990—OTHER THAN FELONY MURDER
TABLE OF CONTENTS
F 702.1 TITLES AND IDENTIFICATION OF PARTIES
F 702.1 Inst 1 Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder—Title
F 702.1 Inst 2 Identification Of Prosecution And Defendant
F 702.2 INSTRUCTIONS
F 702.2 Inst 1 Concurrence Of Act And Intent
F 702.2 Inst 2 Jurors Not Required To Decide Intent To Kill
F 702.2 Inst 3 Special Circumstances: No Reference To The Term “Accomplice”
F 702.2 Inst 4 Deletion Of Surplusage Language “In Order…”
F 702.2 Inst 5 Juror “Disagreement”—Requires At Least One Juror With A Reasonable Doubt
F 702.2 Inst 6 Modification Of Burden Shifting Language
F 702.2 Inst 7 “Decide” vs. “Find Beyond A Reasonable Doubt”
F 702.2 Inst 8 Deletion Of Argumentative And Duplicative Language
F 702.2 NOTES
F 702.2 Note 1 Special Circumstances: Intent—CALCRIM Cross References And Research Notes
F 702.2 Note 2 Special Circumstances: Transferred Intent
Return to Series 700 Table of Contents.
F 702.1 Titles And Identification Of Parties
F 702.1 Inst 1 Special Circumstances: Intent Requirement For Accomplice After June 5, 1990—Other Than Felony Murder—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 702.1 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 702.2 INSTRUCTIONS
F 702.2 Inst 1 Concurrence Of Act And Intent
*Modify CC 702 paragraphs 2 through 4 as follows [added language is underlined; deleted language is stricken]:
[Change “acted” to [ “did the charged acts“[“committed the alleged crimes” ]
Points and Authorities
See FORECITE F 251 Inst 3.
F 702.2 Inst 2 Jurors Not Required To Decide Intent To Kill
*Modify CC 702, paragraph 1 as follows [added language is underlined]:
. . . you must also decide, if you can, whether the defendant acted with the intent to kill.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 702.2 Inst 3 Special Circumstances: No Reference To The Term Accomplice”
*Modify CC 702 Instruction Title as follows [added language is underlined; deleted language is stricken]:
Special Circumstances: Intent Requirement For Accomplice Non-Killer After June 5, 1990C Other Than Felony Murder
Points and Authorities
See FORECITE F 561.5 Inst 5.
F 702.2 Inst 4 Deletion Of Surplusage Language “In Order…”
*Modify CC 702, paragraph 2 as follows [added language is underlined; deleted language is stricken]:
In order To prove (this/these) special circumstance[s] …
Points and Authorities
See FORECITE F 700.2 Inst 2.
F 702.2 Inst 5 Juror “Disagreement”—Requires At Least One Juror With A Reasonable Doubt
*Modify CC 702, paragraph 3, sentence 2 as follows [added language is underlined; deleted language is stricken]:
[If you decide find beyond a reasonable doubt that the defendant is guilty of first degree murder, but you cannot agree whether at least one of you has a reasonable doubt that the defendant was the actual killer, then, in order to find (this/these) special circumstance[s] true, you all must find beyond a reasonable doubt that the defendant acted [did the charged acts] [committed the alleged crimes] with the intent to kill.]]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Single Juror With Reasonable Doubt: The jurors must decide and vote individually as to whether the prosecution has proven its case beyond a reasonable doubt. Therefore, the existence of a juror disagreement depends on whether any juror has a reasonable doubt.
Each individual juror should understand that their vote is their own and they should not be pressured or coerced to abandon their conscientiously held beliefs.
“Acted” vs. “Committed The Alleged Crimes”—See FORECITE F 1120.5 Inst 1.
“Decide” vs. “Find Beyond A Reasonable Doubt”— See FORECITE F 415.8 Inst 1.
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 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 702.2 Inst 6 Modification Of Burden Shifting Language
*Modify CC 702, paragraph 4, sentence 1 as follows [added language is underlined; deleted language is stricken]:
If at least one of you has a reasonable doubt that the defendant was not the actual killer, then the People prosecution have the burden of proving beyond a reasonable doubt that (he/she) acted participated in the crime with the intent to kill . . .
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 To Defendant To Prove He/She Was Not The Actual Killer—The CALCRIM language effectively requires the jurors to find that the defendant was not the actual killer. This unconstitutionally shifts the burden of proof. (See FORECITE F 404.5 Inst 5.)
Modification Of “Acted”— See FORECITE F 251 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.]
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 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 702.2 Inst 7 “Decide” vs. “Find Beyond A Reasonable Doubt”
*Modify CC 702, paragraph 1 and 3 as follows [added language is underlined; deleted language is stricken]:
[Change “decide” to “find beyond a reasonable doubt“]
Points and Authorities
Even if the correct burden is stated elsewhere, the presumption of innocence is so fundamental that it should be reiterated wherever it applies. (See CALCRIM Motion Bank FORECITE F 400.4 Inst 1.)
F 702.2 Inst 8 Deletion Of Argumentative And Duplicative Language
*Modify CC 702, paragraph 3, sentence 1 as follows [deleted language is stricken]:
[The People do not have to prove that the actual killer acted with the intent to kill in order for (this/these) special circumstance[s] to be true.
Points and Authorities
It is duplicative and argumentative to instruct the jurors as to matters which they do not have to find. (See FORECITE F 416.3 Inst 4.)
F 702.2 NOTES
F 702.2 Note 1 Special Circumstances: Intent—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM CC 701 [Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990]
CALCRIM CC 703 [703. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder, PC 190.2(a)(17)]
Research Notes:
See FORECITE F 703 Note 13.
See CLARAWEB Forum Homicide—Series 500-700.
F 702.2 Note 2 Special Circumstances: Transferred Intent
The transferred intent doctrine applies to death eligibility special circumstances which require an intent to kill. (People v. Shabazz (2006) 38 C4th 55, 63-65; see also Bradshaw v. Richey (2005) 546 US 74 [163 L.Ed2d 407; 126 SCt 602].
