SERIES 1500 ARSON
F 1551 Arson Enhancements (PC 451.1, PC 456(b))
TABLE OF CONTENTS
F 1551.1 Titles And Identification Of Parties
F 1551.1 Inst 1 Arson Enhancements—Title
F 1551.1 Inst 2 Identification Of Prosecution And Defendant
F 1551.2 Arson Enhancements—Tailoring To Facts: Persons, Places, Things And Theories
F 1551.2 Inst 1 Tailoring To Facts
F 1551.3 Arson Enhancements—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1551.4 Arson Enhancements—Burden Of Proof Issues
F 1551.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1551.4 Inst 2 (a & b) Inhabited Structure: Modification Of Burden Shifting Language; Personal Property Not Alone Or By Itself Sufficient
F 1551.5 Arson Enhancements—Elements And Definitions
F 1551.5 Inst 1 Jurors Not Required To Reach A Verdict On Arson Enhancement Allegation
F 1551.5 Inst 2 Incorporate Causation Elements Into Enumerated Elements
F 1551.5 Inst 3 Incorporation Of Peace Officer Definition Into Enumerated Elements
F 1551.5 Inst 4 Incorporation Of Firefighter Definition Into Enumerated Elements
F 1551.5 Inst 5 Incorporation Of Emergency Medical Technician Definition In Enumerated Elements
F 1551.5 Inst 6 Definition Of Device Designed To Accelerate The Fire Or Delay Ignition—Incorporation Into Enumerated Elements
F 1551.5 Inst 7 Incorporate Definition Of Causation Into Enumerated Elements
F 1551.6 Arson Enhancements—Defense Theories [Reserved]
F 1551.7 Arson Enhancements—Preliminary Fact Issues [Reserved]
F 1551.8 Arson Enhancements—Unanimity/Duplicity/Multiplicity [Reserved]
F 1551.9 Arson Enhancements—Lesser Offense Issues [Reserved]
Return to Series 1500 Table of Contents.
F 1551.1 Titles And Identification Of Parties
F 1551.1 Inst 1 Arson Enhancements—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1551.1 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 1551.2Arson Enhancements—Tailoring To Facts: Persons, Places, Things And Theories
F 1551.2 Inst 1 Tailoring To Facts
*Modify CC 1551, <Alternative b—injury to firefighter, peace officer, or EMT>, as follows [added language is underlined; deleted language is stricken]:
[1. _______________ <name of person> (A/An) (firefighter[,]/ peace officer[,]/ [or] emergency worker) suffered great bodily injury as a result of the arson;
2. _______________ <name of alleged victim> was a (firefighter[,]/ peace officer[,]/ [or] emergency worker).]
Points and Authorities
See FORECITE F 400.2 Inst 2.
F 1551.3 Arson Enhancements—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1551.4 Arson Enhancements—Burden Of Proof Issues
F 1551.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1551.4 Inst 2 (a & b) Inhabited Structure: Modification Of Burden Shifting Language; Personal Property Not Alone Or By Itself Sufficient
Alternative a:
*Modify CC 1551, paragraph 9, as follows [added language is underlined; deleted language is stricken]:
[A (structure/ [or] property) is not inhabited if the former residents have moved out and do not but intend to return to continue living there. Even if some personal property, belonging to the former residents remains inside, that fact is not [alone] [by itself] sufficient to prove that they intended to return and continue living there.]
Alternative b: Pinpoint Instruction
[See FORECITE F 1502.6 Inst 1.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Modification Of Burden Shifting Language—CALCRIM 1551, paragraph 9, improperly frames the question in terms of whether the structure was “not” inhabited. (Compare CC 1551, paragraphs 7 and 8.) The defendant has no obligation to establish that the structure was “not” inhabited and, therefore, the CC 1551 language improperly shifts the burden of proof. (See generally Carella v. California (1989) 491 US 263 [105 LEd2d 218; 109 SCt 2419].) [See also FORECITE F 404.2 Inst 1.]
Presence Of Personal Property Not Alone Sufficient To Convict—See People v. Cardona (1983) 142 CA3d 481, 483-84.
Occupant Who Is Not Present Must Intend To Return And Continue Living In The Structure—See FORECITE F 1502.2 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.
F 1551.5 Arson Enhancements—Elements And Definitions
F 1551.5 Inst 1 Jurors Not Required To Reach A Verdict On Arson Enhancement Allegation
*Modify CC 1551, paragraph 1, as follows [added language is underlined]:
If you find the defendant guilty of arson [as charged in Count[s] _____ ], you must then try to decide, if you can, whether[, . . .
*Modify CC 1551, paragraph 12, as follows:
[You must try to decide, if you can, whether
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1551.5 Inst 2 Incorporate Causation Elements Into Enumerated Elements
See FORECITE F 1551.5 Inst 7.
F 1551.5 Inst 3 Incorporation Of Peace Officer Definition Into Enumerated Elements
*Add to CC 1551, Alternative b:
To prove that _______________ <name of alleged peace officer> was a peace officer the prosecution must prove beyond a reasonable doubt that _______________ <insert description of facts necessary to make employee a peace officer, e.g., “designated by the director of the agency as a peace officer”>.
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1551.5 Inst 4 Incorporation Of Firefighter Definition Into Enumerated Elements
*Add to CC 1551, Alternative b:
To prove that _______________ <name of alleged firefighter> was a firefighter the prosecution must prove beyond a reasonable doubt that _______________ <name of alleged firefighter> was an officer, employee, or member of a (governmentally operated (fire department/fire protection or firefighting agency) in this state/federal fire department/federal fire protection or firefighting agency), whether or not he or she is paid for his or her services.
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1551.5 Inst 5 Incorporation Of Emergency Medical Technician Definition In Enumerated Elements
*Add to CC 1551, Alternative b:
To prove that _______________ <name of alleged emergency medical technician> was a firefighter, the prosecution must prove beyond a reasonable doubt that _______________ <name of alleged emergency medical technician>, held a valid certificate under the Health and Safety Code as an emergency medical technician.
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1551.5 Inst 6 Definition Of Device Designed To Accelerate The Fire Or Delay Ignition—Incorporation Into Enumerated Elements
*Modify CC 1551: Combine Alternative e and paragraph 10, as follows [added language is underlined; deleted language is stricken]:
[The arson (caused great bodily injury[,]/ [or] caused an inhabited structure or inhabited property to burn[,]/ [or] burned a structure or forest land), and was caused by use of a device designed piece of equipment or a mechanism intended, or devised, to hasten or increase the fire’s progress, to accelerate the fire or delay ignition.]
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1551.5 Inst 7 Incorporate Definition Of Causation Into Enumerated Elements
F 1551.5 Inst 7 Incorporate Definition Of Causation Into Enumerated Elements
*Add to CC 1551, Element 1 and/or 3:
To prove [this] [that the _____________ <insert the act> “caused” the _____________<insert what was caused e.g., burning and/or great bodily injury>, the prosecution must prove the following beyond a reasonable doubt that the______________<insert what was caused> :
1. Would not have happened without the act; and
2. Was the direct, natural, and probable consequence of the act; and
3. A reasonable person in the defendant’s situation, in light of all the circumstances as they were known by and appeared to the defendant, would have known that the ________________ <insert what was caused > was likely to happen if nothing unusual intervened.
[4. The [_____________] <insert act> a substantial factor in causing the _______________<insert what was caused>: (injury/ <insert other description>)].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Elements Defining Causation Should Be Incorporated Into The Enumerated Elements—Jury instructions “should avoid separate definitions of legal terms whenever possible.” (CALCRIM User’s Guide, p.2, “Titles And Definitions.”)
The CALCRIM committee reached this conclusion after years of study and analysis of how to make jury instructions “understandable to the average juror.” (CALCRIM Preface, p. 1.) It makes sense because lay jurors should not be asked to page the instructions to find all the elements the prosecution is required to prove. Burying elements within definitions in other parts of the instructions creates a greater risk that the jurors will inadvertently overlook those elements or give them less consideration than the expressly enumerated elements. [See FORECITE F 3500.2.]
Therefore, if the instructions are to improve the understanding of the average juror and the reliability of the trial, they should specify all required elements and language defining those elements in the same place whenever possible.
Otherwise, there is a danger the jurors will not fully and accurately understand the instructions despite a structure and language which may seem clear to those trained in the law. For example, in People v. Danks (2004) 32 C4th 269, 307, the jury was instructed “not to speak to anyone about the case except a fellow juror.” Notwithstanding this seemingly simple and direct admonishment, the California Supreme Court recognized a danger that the jurors might assume such an instruction does not apply to confidential relationships and recommended that the jury be expressly instructed on that point. (Danks, 32 C4th at 307.) Thus, even though those trained in the law would know to incorporate elements from definitions into the enumerated elements; there is no guarantee that lay jurors will know to do so.
Nor is incorporation of the causation elements cumbersome or confusing. To the contrary, the language and structure set forth above will be clearer and more understandable to the average juror because it sets forth all the necessary elements in the same place. Moreover, by separately enumerating each of the discrete elements contained in the CALCRIM definition of causation, the above-proposed instructions provides greater assurance that average jurors will understand and fully consider each discrete element of the charge. [See FORECITE F 3500.2]
In sum, the defendant’s instructional request to incorporate the elements required to prove causation in the enumerated elements should be granted. Proof of every element of the charge is one of the most fundamental constitutional linchpin’s of the rights to due process and fair trial by jury. (See In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068].)
[See also FORECITE F 103.2 Inst 1.]
Reasonable Person In The Same Situation—See FORECITE F 860.5 Inst 7.
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1551.6 Arson Enhancements—Defense Theories [Reserved]
F 1551.7 Arson Enhancements—Preliminary Fact Issues [Reserved]
F 1551.8 Arson Enhancements—Unanimity/Duplicity/Multiplicity [Reserved]
F 1551.9 Arson Enhancements—Lesser Offense Issues [Reserved]