SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 810 Torture (PC 206)
TABLE OF CONTENTS
F 810.1 Torture: Titles And Identification Of Parties
F 810.1 Inst 1 Torture—Title
F 810.1 Inst 2 Identification Of Prosecution And Defendant
F 810.2 Torture: Tailoring To Facts: Persons, Places, Things And Theories
F 810.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
F 810.2 Inst 2 Tailoring Elements To Facts: Alleged Intent
F 810.3 Torture Language That Is Argumentative, Confusing, Etc.
F 810.3 Inst 1 Deletion Of Argumentative Language
F 810.3 Inst 2 Need For Balance If Argumentative Language Is Retained
F 810.4 Torture Burden Of Proof Issues
F 810.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 810.4 Inst 2 Torture: Cautionary Instruction Regarding Severity Of Wounds
F 810.5 Torture Elements And Definitions
F 810.5 Inst 1 Requirement Of Living Victim
F 810.7 Torture Preliminary Fact Issues [Reserved]
F 810.8 Torture Unanimity/Duplicity/Multiplicity [Reserved]
F 810.9 Torture Lesser Offense Issues [Reserved]
Return to Series 800 Table of Contents.
F 810.1 Torture: Titles And Identification Of Parties
F 810.1 Inst 1 Torture—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 810.1 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 810.2 Torture: Tailoring To Facts: Persons, Places, Things And Theories
F 810.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
*Modify CC 810, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant inflicted great bodily injury on someone else ____________ <name of alleged victim>;
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 810.2 Inst 2 Tailoring Elements To Facts: Alleged Intent
*Modify CC 810, Element 2 as follows:
[Specify alleged intent; delete others. If alleged intent is extortion include elements of extortion in paragraph 5 or 6 as enumerated elements.]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 810.3 Torture Language That Is Argumentative, Confusing, Etc.
F 810.3 Inst 1 Deletion Of Argumentative Language
*Delete paragraph 4 which provides:
[It is not required that a victim actually suffer pain.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 810.3 Inst 2 Need For Balance If Argumentative Language Is Retained
*Add to CC 810, paragraph 4:
However, whether or not the victim actually suffered pain is a circumstance to consider in attempting to decide whether the prosecution has proven all the required elements of torture beyond a reasonable doubt.
Points and Authorities
If CALCRIM 810, paragraph 4, is not deleted (but see FORECITE F 810.3 Inst 1), the instruction should be modified. (See FORECITE F 416.3 Inst 4.)
F 810.4 Torture Burden Of Proof Issues
F 810.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 810.4 Inst 2 Torture: Cautionary Instruction Regarding Severity Of Wounds
*Add to CC 810:
An intent to inflict extreme pain may be inferred from the circumstances of the crime, the nature of the killing, and the condition of _______________’s <name of alleged victim> body. But you are cautioned against giving undue weight to the severity of _______________’s <name of alleged victim> wounds, because horrible wounds may be as consistent with a killing in the heat of passion, and/or in an explosion of violence, as with the intent to inflict cruel suffering.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Potential For Prejudice—See People v. Cole (2004) 33 C4th 1158, 1213-14; see also People v. Morales (1989) 48 C3d 527, 559; People v. Pensinger (1991) 52 C3d 1210, 1239.
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]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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 9.90a.
F 810.5 Torture Elements And Definitions
F 810.5 Inst 1 Requirement Of Living Victim
*Add to CC 810 as Element:
3. ____________ <name of alleged victim> was alive when the great bodily injury was inflicted.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Victim Must Be Alive—Because a deceased person cannot feel pain, torture cannot occur without a living victim. (People v. Franc (1990) 218 CA3d 588, 595; see also FORECITE F 8.24a.)
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 810.6 Torture Defense Theories [Reserved]
F 810.7 Torture Preliminary Fact Issues [Reserved]
F 810.8 Torture Unanimity/Duplicity/Multiplicity [Reserved]
F 810.9 Torture Lesser Offense Issues [Reserved]
