SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 820 Assault Causing Death Of Child (PC 273ab)
TABLE OF CONTENTS
F 820.1 Assault Causing Death Of Child: Titles And Identification Of Parties
F 820.1 Inst 1 Assault Causing Death Of Child—Title
F 820.1 Inst 2 Identification Of Prosecution And Defendant
F 820.2 Assault Causing Death Of Child: Tailoring To Facts: Persons, Places, Things And Theories
F 820.2 Inst 1 Tailoring To Facts: Name Of Alleged Victim
F 820.3 Assault Causing Death Of Child: Language That Is Argumentative, Confusing, Etc.
F 820.3 Inst 1 Willfully: Argumentative
F 820.3 Inst 2 Balancing Of Argumentative “Willfully” Language
F 820.4 Assault Causing Death Of Child: Burden Of Proof Issues
F 820.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 820.4 Inst 2 Delete Burden Shifting Language: “Established By The Evidence”
F 820.5 Assault Causing Death Of Child: Elements And Definitions
F 820.5 Inst 1 Felony Child Abuse: “Willfully” Requires Knowledge Of Consequences
F 820.5 Inst 2 Child Abuse Resulting In Death: Definition Of Care And Custody
F 820.5 Inst 3 (a, b & c) Assault On Child Under 8 Resulting In Death (PC 273ab): Objective Reasonable Person Standard
F 820.5 Inst 4″>F 820.5 Inst 4 Concurrence Of Act And Intent
F 820.5 Inst 5″>F 820.5 Inst 5 Causation Elements: Include As Enumerated
F 820.5 Inst 6″>F 820.5 Inst 6 No Duty To Decide
F 820.6 Assault Causing Death Of Child: Defense Theories
F 820.6 Inst 1 Reasonable Discipline: Reasonable Person In Defendant’s Situation
F 820.7 Assault Causing Death Of Child: Preliminary Fact Issues [Reserved]
F 820.8 Assault Causing Death Of Child: Unanimity/Duplicity/Multiplicity [Reserved]
F 820.9 Assault Causing Death Of Child: Lesser Offense Issues [Reserved]
Return to Series 800 Table of Contents.
F 820.1 Assault Causing Death Of Child: Titles And Identification Of Parties
F 820.1 Inst 1 Assault Causing Death Of Child—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 820.1 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 820.2 Assault Causing Death Of Child: Tailoring To Facts: Persons, Places, Things And Theories
F 820.2 Inst 1 Tailoring To Facts: Name Of Alleged Victim
*Modify CC 820, Elements 1, 2, 5, 6, 7, 8, as follows [added language is underlined; deleted language is stricken]:
[Change “a child” or “the child” to “____________ <name of alleged victim>“]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Tailoring—Tailoring of the instruction to include the name of the victim is necessary for two reasons. First, it promotes the clarity and understandability of the instruction. Second, it promotes fairness and due process by providing notice to the defendant of the prosecution’s allegations. (See FORECITE F 400.2 Inst 1.)
Moreover, other CALCRIM instructions do provide for such tailoring. (See e.g., CALCRIM 830; CC 831.)
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.1 [Due Process And Notice—Generally]
FORECITE CG 6.2 [Notice: Charging Document]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 820.3 Assault Causing Death Of Child: Language That Is Argumentative, Confusing, Etc.
F 820.3 Inst 1Willfully: Argumentative
*Modify CC 820, paragraph 3, sentence 2, which provides [deleted language is stricken]:
It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Stating What The Prosecution Need Not Prove As Argumentative—By stating what the prosecution does not have to prove, the CALCRIM instruction on “willfully” is improperly argumentative and duplicative. (See FORECITE F 416.3 Inst 4; compare e.g., CC 821-23; CC 830-31.)
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 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 820.3 Inst 2 Balancing Of Argumentative “Willfully” Language
*Add to CC 820:
However, whether or not the victim actually suffered great bodily injury is a circumstance to consider in attempting to decide whether the prosecution has proven all the required elements of the charge beyond a reasonable doubt.
Points and Authorities
If CALCRIM 820, paragraph 4, is not deleted (but see FORECITE F 820.3 Inst 1), the instruction should be modified. (See FORECITE F 416.3 Inst 4.)
F 820.3 Inst 3 Delete Argumentative Language
*Modify CC 820, paragraph 7, sentence 2, as follows [deleted language is stricken]:
However, it does not need to be the only factor that caused the death.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 820.4 Assault Causing Death Of Child: Burden Of Proof Issues
F 820.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 820.4 Inst 2 Delete Burden Shifting Language: “Established By The Evidence”
*Modify CC 820, paragraph 6, sentence 2, as follows [deleted language is stricken]:
In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
Points and Authorities
See FORECITE F 402.4 Inst 2.
F 820.5 Assault Causing Death Of Child: Elements And Definitions
F 820.5 Inst 1 Felony Child Abuse: “Willfully” Requires Knowledge Of Consequences
*Modify CC 820, paragraph 3, as follows [added language is underlined]:
Someone commits an act willfully when he or she does it willingly or on purpose and with knowledge of the consequences. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Knowledge Element OF Willfully—The term “willfully,” as a component of general intent, requires actual knowledge of the nature and consequences of the act committed. (See FORECITE F 1.20a and FORECITE F 250 Inst 2.) The terms “willfully” and “on purpose” do not alone encompass this knowledge requirement since they can be applied to the act without regard to its nature and consequences.
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 9.37a.
F 820.5 Inst 2 Child Abuse Resulting In Death: Definition Of Care And Custody
*Add to CC 820:
The term “care and custody” does not require a family relationship but does require an assumption of duties correspondent to the role of a caregiver.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Care And Custody Defined—See People v. Cochran (1998) 62 CA4th 826.
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.
NOTE: In People v. Smart UNPUBLISHED (4/13/95, C017810), the court held that the terms “care” and “custody” as used in PC 273a require that the defendant has “assumed responsibility” for the children. Because the evidence of such assumption of responsibility was insufficient in Smart, the court did not address the question of whether “care” and “custody” are technical terms which require sua sponte definition. [See Brief Bank # B-657 and Opinion Bank # O-192 for the briefing and opinion in Smart.]
CALJIC NOTE: See FORECITE F 9.37c / F 9.37 n4.
F 820.5 Inst 3 (a, b & c) Assault On Child Under 8 Resulting In Death (PC 273ab): Objective Reasonable Person Standard
Alternative a:
*Modify CC 820, Element 5, as follows [added language is underlined; deleted language is stricken]:
5. When the defendant acted committed the act referred to in Element 3, above, (he/she) was aware of facts that would lead a reasonable person, in the defendant’s situation, considering all the circumstances as they were known by and appeared to the defendant, to realize that (his/her) act by its nature would directly and probably result in great bodily injury to the child;
Alternative b [constructive knowledge]:
*Add to CC 820, Element 5 [CC 505/851 Format]:
When [deciding, if you can,] [evaluating] whether the defendant reasonably should have known that (his/her) act by its nature would directly and probably result in great bodily injury to the child, consider all the circumstances as they were known by and appeared to the defendant. That is, consider what a reasonable person in the [same situation as the defendant] [defendant’s situation] [defendant’s circumstance’s] would have known.
Alternative c:
*Modify CC 820, Element 5, as follows [added language is underlined]:
5. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person in a similar situation with similar knowledge to realize that (his/her) act by its nature would directly and probably result in great bodily injury to the child;
[Adapted from CC 2624, Elements 3 & 4 (August 2012 Revision).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Circumstances As Known By And Appeared To The Person Whose Knowledge Or Conduct Is Being Evaluated – The jury should consider all the circumstances in applying the reasonable person standard to the defendant. (See People v. Humphrey (1996) 13 C4th 1073, 1087 [“…the jury must consider defendant’s situation and knowledge…”]; see also F 402.5 Inst 3.) Thus the jurors should consider both the circumstances the defendant actually knew and the circumstances as they appeared to the defendant. (See, e.g., CALCRIM 505, para. 3; CC 3470, para. 3; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 3.5 Authors’ Notes, p. 108-09 [Note: CC 851 para. 4 includes the same language but uses “or” rather than “and”].)
Indeed, the circumstances, as they “appear” to the person being evaluated, is the linchpin of the objective reasonable person standard. (See e.g., People v. Randle (2005) 35 C4th 987, 998-999 [“It must appear that the circumstances were sufficient to excite the fears of a reasonable person …”]; People v. Minifie (1996)13 C 4th 1055, 1067 [jury must judge whether defendant used only the “force and means … which would appear to a reasonable person, in the same or similar circumstances…”]; People v. Martinez (1995) 11 C4th 434, 450 [lewd act defined as “any touching of an underage child which appears ‘sexually indecent’ to a reasonable person under the ‘totality of the circumstances …'”]; Tamborino v. Superior Court (1986) 41 C3d 919, 926 Grodin, J., concurring [Observing that in the tort arena conduct is measured by “a reasonable person under the circumstances, as they would appear to one who was using proper care …”].)
Specification Of Act Committed – See FORECITE F 820.5 Inst 4 [Concurrence Of Act And Intent].
Situation Vs. Position Vs. Defendant’s Circumstances—The Task Force instructions [both CALCRIM and CACI] use several alternative and seemingly interchangeable means to describe how the jurors should evaluate conduct or knowledge under the reasonable person standard. These alternatives instruct the jury to consider a reasonable person in the:
(1) “same” or “similar” “situation”—e.g., CALCRIM 1300, Element 4; 1301, Element 2; 1531, paragraph 3; CACI 64, paragraph 1; CACI 403.
(2) “same” or “similar” “position”—e.g., CALCRIM 3402, paragraph 2, sentence 2.
(3) “the [defendant’s] [person’s] circumstances”—e.g., CACI 1501, Element 3.
(4) “in the same circumstances ” or “in ________ [name of defendant]’s position under the same or similar circumstances”—e.g., CALCRIM 3410, paragraph 2, CACI 1305, paragraph 3.
The cases also refer to both terms. (E.g., People v. Robertson (2004) 34 C4th 156, 169 [“reasonable person in defendant’s situation”] People v. Humphrey (1996) 13 C4th 1073, 1083 [defendant’s “position”]; Humphrey, 13 C4th at 1102 [“situation”]; People v. Ochoa (1993) 6 C4th 1199, 1204 [“position”].)
While the references these three alternatives are obviously meant to refer to the same considerations—i.e., “..the jury must consider defendant’s situation and knowledge…”(Humphrey, 13 C4th at 1087—there may be subtle differences in meaning or emphasis that could be important in some cases. For example, “lay jurors may consider ‘position’ to be limited to location.” (See Revised Arizona Jury Instructions (Criminal) RAJI inst. 4.04 [Justification For Self-Defense] (CLE State Bar of Arizona, 1996).)
Therefore, to provide the most precise and factually tailored instruction (see F 400.2 Inst 1 [re: need to tailor instruction to the facts], the better practice would be to instruct the jurors to consider a reasonable person in the “defendant’s situation.” (See e.g., Revised Arizona Jury Instructions (Criminal) RAJI inst. 4.04 [Justification For Self-Defense] (CLE State Bar of Arizona, 1996).) Or, if the person to whom the standard is being applied is not the defendant: “consider a reasonable person in _________________’s <name of person> situation.”
Same Vs. Similar—The cases, as well as CALCRIM and CACI, use both the terms “similar circumstances” and “same circumstances” when describing the reasonable doubt standard. See above. However, if the phrase “the defendant’s circumstances” is used there is no need to decide whether to use the term “same” or “similar.” If a choice needs to be made, “same” should be used since it is more precise. The term similar could be interpreted to allow more variation in circumstances than would be permissible under the legal principles governing the reasonable person standard.
“Would Have Appeared”—The change in tense is necessary to keep sentence 2 consistent with sentence 1.
Objective Standard: Consideration Of Factors Impacting Defendant—When a statute imposes criminal liability based upon constructive knowledge of a fact— i.e., the defendant “should have known” the fact— an objective “reasonable person” standard applies. (See People v. Mathews (1994) 25 CA4th 89, 99; see also People v. Ochoa (1993) 6 C4th 1199, 1204 [whether a reasonable person “would have been aware” of the risk involved is an objective standard]; cf., People v. Humphrey (1996) 13 C4th 1073.) This standard requires consideration of “a reasonable person in defendant’s position …” (Ochoa, 6 C4th at 1205, emphasis in original; see also People v. Humphrey, 13 C4th at 1083 [“similar situation with similar knowledge”].) Thus, any evidence which would impair the defendant’s ability to know the fact in issue such as intoxication (Ochoa) or physical disability (Mathews), etc., must be considered by the jury in determining whether a reasonable person in the defendant’s position would have or should have known the fact in issue.
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.
NOTE: This instruction was successfully used in a “Shaken Baby Syndrome” case charged under PC 273ab. (Search for “PC 273ab.”)
NOTE: The phrase “resulting in the child’s death” does not modify “great bodily injury,” and therefore, the prosecution need not prove that a reasonable person would believe the means of force would be likely to result in the child’s death. (People v. Preller (1997) 54 CA4th 93, 97-98.)
CALJIC NOTE: See FORECITE F 9.36.5a / F 9.36.5 n1.
F 820.5 Inst 4 Concurrence Of Act And Intent
*Modify CC 820, Elements 5, 6 & 8, as follows [added language is underlined; deleted language is stricken]:
[Change “When the defendant acted, …” to “When the defendant committed the act referred to in Element 2, above, …”]
Points and Authorities
See FORECITE F 251 Inst 3.
F 820.5 Inst 5Causation Elements: Include As Enumerated
*Modify CC 820 as follows:
[Include causation Elements list in CC 820, paragraph 4, as discrete enumerated elements of the offense.]
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 820.5 Inst 6 No Duty To Decide
*Modify CC 820, paragraph 6, sentence 2, as follows [added language is underlined; deleted language is stricken]:
In deciding attempting to decide whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
Points and Authorities
See FORECITE F 100.7 Inst 1; F 104.1 Inst 1.
F 820.6 Assault Causing Death Of Child: Defense Theories
F 820.6 Inst 1 Reasonable Discipline: Reasonable Person In Defendant’s Situation
See FORECITE F 820.5 Inst 3.
F 820.7 Assault Causing Death Of Child: Preliminary Fact Issues [Reserved]
F 820.8 Assault Causing Death Of Child: Unanimity/Duplicity/Multiplicity[Reserved]
F 820.9 Assault Causing Death Of Child: Lesser Offense Issues [Reserved]
