SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 821 Child Abuse Likely To Produce Great Bodily Harm Or Death (PC 273a(a))
TABLE OF CONTENTS
F 821.1 Child Abuse Likely To Produce Great Bodily Harm Or Death: Titles And Identification Of Parties
F 821.1 Inst 1 Child Abuse Likely To Produce Great Bodily Harm Or Death—Title
F 821.1 Inst 2 Identification Of Prosecution And Defendant
F 821.2 Child Abuse Likely To Produce Great Bodily Harm Or Death: Tailoring To Facts: Persons, Places, Things And Theories
F 821.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
F 821.2 Inst 2 Tailor To Facts: Prosecution Theory Vis a Vis Type Of Pain
F 821.2 Inst 3 Tailor To Facts: Caused Or Permitted
F 821.2 Inst 4 Tailor To Facts: Caused Or Permitted
F 821.3 Child Abuse Likely To Produce Great Bodily Harm Or Death: Language That Is Argumentative, Confusing, Etc.
F 821.3 Inst 1 Delete Argumentative Language
F 821.3 Inst 2 Need For Balance: Lack Of Harm To Child As Circumstance To Consider
F 821.4 Child Abuse Likely To Produce Great Bodily Harm Or Death: Burden Of Proof Issues
F 821.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 821.4 Inst 2 Criminal Negligence: “Requires”More Than Ordinary Carelessness
F 821.5 Child Abuse Likely To Produce Great Bodily Harm Or Death: Elements And Definitions
F 821.5 Inst 1 Alternative A: Separate Enumeration Of Elements
F 821.5 Inst 2 Alternative B: Separate Enumeration Of Elements
F 821.5 Inst 3 Alternative C: Separate Enumeration Of Elements
F 821.5 Inst 4 Alternative D: Separate Enumeration Of Elements
F 821.5 Inst 5 Instruction On Causation Principles; Causation Instructions Applicable To Permitting Injury, Suffering Or Endangerment
F 821.5 Inst 6 Unjustifiable Physical Pain: Reasonable Person In Defendant’s Situation
F 821.5 Inst 7 Concurrence Of Act And Criminal Negligence
F 821.5 Inst 8 CC 821 Erroneously Replaces “Great Bodily Injury” With “Serious Injury” In Violation Of The Express Wording Of PC 273a(a)
F 821.6 Child Abuse Likely To Produce Great Bodily Harm Or Death: Defense Theories
F 821.6 Inst 1 (a & b) Parental Discipline As Defense Theory
F 821.6 Inst 2 Parent’s Right To Discipline Child: Listed Factors Are Not Exclusive; Consider Relevant Factors; Do Not Consider Irrelevant Factors
F 821.7 Child Abuse Likely To Produce Great Bodily Harm Or Death: Preliminary Fact Issues [Reserved]
F 821.8 Child Abuse Likely To Produce Great Bodily Harm Or Death: Unanimity/ Duplicity/ Multiplicity [Reserved]
F 821.9 Lesser Offense Issues [Reserved]
Return to Series 800 Table of Contents.
F 821.1 Child Abuse Likely To Produce Great Bodily Harm Or Death: Titles And Identification Of Parties
F 821.1 Inst 1 Child Abuse Likely To Produce Great Bodily Harm Or Death—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 821.1 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 821.2 Child Abuse Likely To Produce Great Bodily Harm Or Death: Tailoring To Facts: Persons, Places, Things And Theories
F 821.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
*Modify CC 821, all Elements and Alternatives as follows [added language is underlined; deleted language is stricken]:
[Change “a child” and “the child” to “_______________ <name of alleged victim>“]
Points and Authorities
See FORECITE F 820.2 Inst 1.
F 821.2 Inst 2 Tailor To Facts: Prosecution Theory Vis a Vis Type Of Pain
*Modify CC 821 to specify whether the prosecution is alleging physical pain, mental pain or both.
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 821.2 Inst 3 Tailor To Facts: Caused Or Permitted
*Modify CC 821, Alternative B, C, and D, Elements 1, 2 and 3, as follows [added language is underlined]:
… [caused] [or] [permitted] …
Points and Authorities
See FORECITE F 400.2 Inst 1.
CAVEAT: Causation principles should apply even if the prosecution relies on a theory that the pain or suffering was “permitted” rather than “caused.”
F 821.2 Inst 4 Tailor To Facts: Caused Or Permitted
*Modify CC 821, Alternative C and D, as follows [added language is underlined]:
… [person] [or] [health] …
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 821.3 Child Abuse Likely To Produce Great Bodily Harm Or Death: Language That Is Argumentative, Confusing, Etc.
F 821.3 Inst 1 Delete Argumentative Language
*Delete CC 821, paragraph 10, which provides:
[A child does not need to actually suffer great bodily harm. But if a child does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 821.3 Inst 2 Need For Balance: Lack Of Harm To Child As Circumstance To Consider
*Modify CC 821, paragraph 10, as follows [added language is underlined; deleted language is stricken]:
[A child does not need to actually suffer great bodily harm. But if whether or note a child does suffer great bodily harm, you may is a circumstance to consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense.]
Points and Authorities
If CALCRIM 821, paragraph 10, is not deleted (but see FORECITE F 821.3 Inst 1), it should be modified. (See FORECITE F 416.3 Inst 4.)
F 821.4 Child Abuse Likely To Produce Great Bodily Harm Or Death: Burden Of Proof Issues
F 821.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 821.4 Inst 2 Criminal Negligence: “Requires”More Than Ordinary Carelessness
*Modify CC 821, paragraph 8, sentence 1, as follows [added language is underlined; deleted language is stricken]:
Criminal negligence involves requires more than ordinary carelessness, inattention, or mistake in judgment.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
“Involves” Fails To Convey The Necessity Of Proof—The term “involves” fails to make it clear that this sentence applies to a matter which the prosecution is required to prove. (See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 100.1 Inst 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.
