SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1751 Defense To Receiving Stolen Property: Innocent Intent
TABLE OF CONTENTS
F 1751.1 Titles And Identification Of Parties
F 1751.1 Inst 1 Defense To Receiving Stolen Property: Innocent Intent—Title
F 1751.1 Inst 2 Identification Of Prosecution And Defendant
F 1751.2 Defense To Receiving Stolen Property: Innocent Intent—Tailoring To Facts: Persons, Places, Things And Theories
F 1751.2 Inst 1 Defense To Receiving Stolen Property: Delete The Term “Defense”
F 1751.2 Inst 2 Defense To Receiving Stolen Property: Correction Of Burden Shifting Language
F 1751.2 Inst 3 (a & b) Innocent Intent: Pinpoint Instruction Relating To Prosecution’s Burden Of Proof
F 1751.2 Inst 4 Receiving Stolen Property: Innocent Intent—Modification Of Exceptions
Return to Series 1700 Table of Contents.
F 1751.1 Titles And Identification Of Parties
F 1751.1 Inst 1 Defense To Receiving Stolen Property: Innocent Intent—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1751.1 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 1751.2Defense To Receiving Stolen Property: Innocent Intent—Tailoring To Facts: Persons, Places, Things And Theories
F 1751.2 Inst 1 Defense To Receiving Stolen Property: Delete The Term “Defense”
*Modify CC 1751, Title, as follows [deleted language is stricken]:
Defense To Receiving Stolen Property: Innocent Intent
*Modify CC 1751, paragraph 3, sentence 1, as follows [added language is underlined; deleted language is stricken]:
[This defense does not apply The defendant may be convicted of receiving stolen property if the defendant decided to (return the property to its owner/ [or] deliver the property to law enforcement) only after (he/she) wrongfully (bought/received/concealed/withheld) the property.]
*Modify CC 1751, paragraph 3, sentence 1, as follows:
[The defense [also] does not apply The defendant may [also] be convicted of receiving stolen property if the defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) it, but later decided to (sell/conceal/withhold) the property.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Term “Defense” As Burden Shifting—Use of the term “defense” is inaccurate and misleading when applied to defensive matters which are defined in terms of whether they leave the jurors with a reasonable doubt about whether the prosecution has proven an essential element of the charge. (See FORECITE F 404.2 Inst 1; F 315.1.2 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 1751.2 Inst 2 Defense To Receiving Stolen Property: Correction Of Burden Shifting Language
Alternative a [Add as element to CC 1750]:
When the defendant (bought/received/concealed/withheld) _______________ <specification or description of property>, (he/she) did not intend to (return the property to its owner/ [or] deliver the property to law enforcement).
Alternative b [Modify CC 1751, paragraph 1 and 2] [added language is underlined; deleted language is stricken]:
The defendant is not guilty of receiving (stolen/extorted) property if unless (he/she) did not intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/ withheld) the property.
If you have a reasonable doubt about whether the prosecution has proven that the defendant did not intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/ concealed/ withheld) the property, you must find (him/her) not guilty of receiving (stolen/extorted) property.
Alternative c [Pinpoint instruction using CC 3400 format]:
[See FORECITE F 1751.2 Inst 3.]
Points and Authorities
See FORECITE F 1751.2 Inst 3.
F 1751.2 Inst 3 (a & b) Innocent Intent: Pinpoint Instruction Relating To Prosecution’s Burden Of Proof
Alternative a [using CC 3400 format]:
The prosecution must prove that the defendant (bought/received/concealed /withheld) the property with criminal intent. The defendant contends that (he/she) had no criminal intent because (he/she) intended to (return the property to its owner/ [or] deliver the property to law enforcement). The defendant does not need to prove that (he/she) intended to (return the property to its owner/ [or] deliver the property to law enforcement).
If you have a reasonable doubt about whether the defendant had criminal intent when (he/she) [allegedly] (bought/received/concealed/withheld), you must find (him/her) not guilty.
Alternative b:
*Modify CC 1751, paragraph 1, as follows [added language is underlined]:
The defendant contends that (he/she) is not guilty of receiving (stolen/extorted) property if because (he/she) intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/ concealed/withheld) the property.
*Replace CC 1751, paragraph 2, with the following:
However, the defendant does not need to prove this contention. Rather, the prosecution must prove beyond a reasonable doubt that:
1. The defendant did not intent to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/ concealed/withheld) the property.
2. The defendant decided to (return the property to its owner/ [or] deliver the property to law enforcement) only after (he/she) wrongfully (bought/received/ concealed/withheld) the property.
3. The defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) it, but later decided to (sell/conceal/withhold) the property.
If the prosecution has not proved at least one of these three allegations beyond a reasonable doubt, you must fine the defendant not guilty of receiving (stolen/extorted) property.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 1751 erroneously states the burden of proof in terms of whether the jury has “a reasonable doubt about whether the defendant intended to return the property…” This language improperly frames the question in terms of whether or not the defendant intended to return the property thus implying an obligation on the part of the defendant to produce some evidence on the issue. However, the defendant has no obligation to produce any evidence or prove anything. (See FORECITE F 100.1 Inst 1.)
Rather, the burden rests entirely with the prosecution which must prove beyond a reasonable doubt that the defendant did not intend to return the property. (See e.g., CC 1863, last paragraph [reasonable doubt about whether the defendant had “the intent required. . .”]; see also CALCRIM 505 [prosecution must prove the defendant did not act in self-defense].)
The erroneous structure of the language can be illustrated by asking: What should the jury do under this instruction if they are convinced beyond a reasonable doubt that the defendant intended to return the property? Under the literal language of the instruction, the jurors could not find the defendant not guilty because they would not have “a reasonable doubt about whether the defendant intended to return the property.”
Hence, it is erroneous to structure the language of this instruction in terms of what the defendant intended to do, rather it must be framed in terms of what the defendant did not intend to do since that is ultimately the allegation which the prosecution must prove: i.e., that the defendant did not intend to return the property.
CALCRIM 3400 Provides An Accurate Format For Modification Of CALCRIM 1751 —The so-called “innocent intent” defense to a charge of receiving stolen property serves to negate criminal intent:
“A defense that although all other elements were present, the defendant did not have any criminal intent but had, from the moment that he received the stolen property, intended to return it to the rightful owner, if proven and accepted by the jury, will absolve him of guilt. [Citation.]” (People v. Dishman (1982) 128 CA3d 717, 720-23.)
Thus, because the “innocent intent” defense “relate[s] to the defendant’s guilt or innocence,” the defendant is not required “to persuade the trier of fact of his innocence.” (People v. Mower (2002) 28 C4th 457, 479.) As with other analogous defenses such as alibi, duress, unconsciousness, etc. (see Mower, 28 C4th at 480, fn. 7), the question for the jurors is whether the defendant has raised a reasonable doubt as to the existence of the contested element. (See Mower, 28 C4th at 479-80.)
For such defenses CALCRIM 3400 provides an instructional format for pinpoint instructions which relate the defense theory to the prosecution’s burden of proof. (See FORECITE F 315.1.2 Inst 2.)
In sum, because CC 3400 correctly states the law for defense theories which negate an element of the charge (see CALCRIM User’s Guide, p. 1 [the CALCRIM instructions are “accurate”]) pinpoint instructions adapted from the CC 3400 format are also correct statements of the law.
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 1751.2 Inst 4 Receiving Stolen Property: Innocent Intent—Modification Of Exceptions
*Delete CC 1751, paragraph 3, sentence 1:
[This defense does not apply if the defendant decided to (return the property to its owner/ [or] deliver the property to law enforcement) only after (he/she) wrongfully (bought/received/concealed/withheld) the property.]
*Replace CC 1751, paragraph 3, sentence 2, with the following:
The prosecution contends that even [though] [if] the defendant (bought/received /concealed/withheld) the property with an intent to (return the property to its owner/ [or] deliver the property to law enforcement), the defendant later decided to (sell/conceal/withhold) it. If you have a reasonable doubt about whether the prosecution has proven this contention beyond a reasonable doubt, you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 1751 fails to relate the prosecution’s burden of proof to the theory that the defendant decided to sell, conceal or withhold the property after originally obtaining it with innocent intent. (See EC 502.) [See also FORECITE F 315.1.2 Inst 2.]
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—See also FORECITE F 1750.6 Inst 3[Receiving Stolen Property: Whether Theft And Receiving May Be Based On Wrongful Retention Of Property Originally Received Innocently].
