SERIES 1800 THEFT AND EXTORTION
F 1863 Defense To Theft Or Robbery: Claim of Right (PC 511)
TABLE OF CONTENTS
F 1863.1 Titles And Identification Of Parties
F 1863.1 Inst 1 Defense To Theft Or Robbery: Claim of Right—Title
F 1863.1 Inst 2 Identification Of Prosecution And Defendant
F 1863.2 Defense To Theft Or Robbery: Claim of Right—Tailoring To Facts: Persons, Places, Things And Theories
F 1863.2 Inst 1 (a & b) Claim Of Right: Correction Of Burden Shifting Language
F 1863.2 Inst 2 Claim Of Right: Element Of The Charge
F 1863.2 Inst 3 Claim Of Right [CALCRIM 3400 Adaption]
F 1863.2 Inst 4 Pinpoint Instruction: Abandoned Or Lost Property
F 1863.2 Inst 5 Claim Of Right: Improper To Require That The Defendant “Openly Took” The Property And Did Not “Conceal”
F 1863.2 Inst 6 Claim Of Right: Where Defendant Didn’t Actually Take The Property
F 1863.2 Inst 7 (a & b) Claim Of Right On Behalf Of Another
F 1863.2 Inst 8 Good Faith Intent To Return The Property As Defense Theory To Theft, Robbery Or Receiving Stolen Property Prosecution
F 1863.2 Inst 9 Claim Of Right—Unreasonable Belief In Right To Property
F 1863.2 Inst 10 (a & b) Robbery/Theft: Good Faith Belief In Consent (PC 484 & PC 487)
F 1863.2 Inst 11 Improper Instruction On Inference From Knowledge Of Facts Which Make Good Faith Belief Completely Unreasonable
Return to Series 1800 Table of Contents.
F 1863.1 Titles And Identification Of Parties
F 1863.1 Inst 1 Defense To Theft Or Robbery: Claim of Right—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1863.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1863.2 Defense To Theft Or Robbery: Claim of Right—Tailoring To Facts: Persons, Places, Things And Theories
F 1863.2 Inst 1 (a & b) Claim Of Right: Correction Of Burden Shifting Language
Alternative a:
*Replace CC 1863 with the following [CC 3400 Format]:
The prosecution must prove that the defendant had the required intent for the crime of (theft/robbery/________). The defendant contends that (he/she) did not have the required intent because (he/she) believed in good faith, even if unreasonably or mistaken, that (he/she) had a right to the [specific property taken] [_______________ <specify property taken>]. The prosecution must prove that the defendant _______________ <e.g., intended to take the property of another and permanently deprive the owner> of it. The defendant does not need to prove that (he/she) believed (he/she) had a right to the property. If you have a reasonable doubt about whether the defendant [had the intent required for (theft/ [or] robbery/ [or] ________)], you must find (him/her) not guilty.
Alternative b:
*Modify CC 1863, paragraphs 1-3 as follows [added language is underlined; deleted language is stricken]:
[Delete paragraph 1, modify paragraph 2 and 3 as follows:]
The prosecution must prove beyond a reasonable doubt that the defendant did not [obtained] [intend to obtain] property under a claim of right. if (he/she) This requires the prosecution to prove that the defendant did not believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it.
In deciding, if you can, whether or not the prosecution has met this burden of proving that the defendant did not believed that (he/she) had a right to the property and whether or that (he/she) did not held hold that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith, even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Correction Of Burden Shifting Language—The first three paragraphs of CALCRIM 1863 erroneously use burden shifting language implying that the defendant needs to show or establish the existence of a claim of right. Such language should be modified even if other language in the instruction properly states the burden. [See FORECITE F 404.2 Inst 1.]
The above modification corrects this error using the format of CC 3400 [Alibi] which is conceptually analogous to claim of right in that it negates an essential element of the charge.
Deletion Of “Openly Took It” Language—See FORECITE F 1863.2 Inst 4.
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 1863.2 Inst 2 Claim Of Right: Element Of The Charge
*Add to CC 1863:
To disprove the defendant’s claim of right contention, the prosecution must prove beyond a reasonable doubt that:
1. The defendant did not believe in good faith that (he/she) had a right to the property (he/she) [took] [intended to take];
[OR]
2. [The defendant’s asserted right to the property (he/she) [took] [intended to take] arose from an activity commonly known to be illegal or known by the defendant to be illegal];
[OR]
3. The defendant [took] [intended to take the property to offset or obtain payment of claims against _______________ <name of alleged victim> of an undetermined or disputed amount];
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 1863 fails to make clear what the prosecution must prove to defeat the defendant’s asserted claim of right. [See FORECITE F 103.2 Inst 1; F 404.2 Inst 1.]
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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.
F 1863.2 Inst 3Claim Of Right [CALCRIM 3400 Adaption]
*Replace CC 1863 with the following:
The prosecution must prove that the defendant took the property with criminal intent. The defendant contends (he/she) did not have criminal intent because (he/she) honestly believed that (he/she) had a lawful right to the property. The prosecution must prove all elements of the charged offense beyond a reasonable doubt, including the existence of criminal intent. Therefore, the defendant does not need to prove (he/she) honestly believed (he/she) had a right to the property. If you have a reasonable doubt about whether the prosecution has proved the required criminal intent, 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 1863 contains burden shifting language which may mislead the jurors. [See FORECITE F 1863.2 Inst 2 and Inst 3; see also F 404.2 Inst 1.] The above instruction, which is adapted from CC 3400, is preferable because it expressly states that the defendant “need not prove” claim of right.
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 1863.2 Inst 4 Pinpoint Instruction: Abandoned Or Lost Property
*Replace CC 1863 with the following:
The prosecution must prove that the defendant took the property with criminal intent. The defendant contends (he/she) did not have criminal intent because (he/she) honestly believed that the property was [abandoned] [lost]. The prosecution must prove all elements of the charged offense beyond a reasonable doubt, including the existence of criminal intent. Therefore, the defendant does not need to prove (he/she) honestly believed that the property was [abandoned] [lost]. If you have a reasonable doubt about whether the prosecution has proved the required criminal intent, 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.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Taking Abandoned Or Lost Property As Defense Theory—A mistake of fact as to whether property taken was lost or abandoned should be available as a defense theory to a charge of theft or receiving stolen property. (See generally People v. Navarro (1997) 99 CA3d Supp 1; see also People v. Romo (1990) 220 CA3d 514, 519-20 [assuming good faith belief in abandonment would negate criminal intent].) This is so because in a larceny case, an honest belief that the property was abandoned or lost is inconsistent with criminal intent to steal or appropriate the property. (See generally People v. Tufunga (1999) 21 C4th 935, 945-46 [the crimes of theft and robbery require /”animus furandi/, or intent to steal”]; see also Morissette v. U.S. (1952) 342 US 246 [72 SCt 240; 96 LEd 288] [defendant honestly believed government property to have been abandoned]; Nicholson v. State (AL 1979) 369 So2d 304, 307 [intent to commit larceny is lacking and the defendant is not guilty of larceny if he has taken the property with the reasonable and actual belief that it was abandoned]; Goddard v. U.S. (DC 1989) 557 A2d 1315, 1317 [defendant entitled to instruction on his claim that he actually and reasonably believed motorcycle was abandoned]; Szewczyk v. State (MD 1969) 256 A2d 713, 715 [intent to commit larceny is lacking and the defendant is not guilty of larceny if he has taken the property with the reasonable and actual belief that it was abandoned]; State v. Gage (MN 1965) 136 NW2d 662, 665 [same]; see also Criminal Jury Instructions for the District of Columbia 5.03 comment [Claim Of Right] (Bar Association of the District of Columbia, 4th ed. 1993) ¶ 2, sent. 1, p. 549 [“Indicia of abandonment can be the basis of instruction”].)
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 1863.2 Inst 5 Claim Of Right: Improper To Require That The Defendant “Openly Took” The Property And Did Not “Conceal”
*For robbery and theft prosecutions, modify CC 1863 as follows:
Paragraph 2: Delete “, and (he/she) openly took it”
Delete paragraph 4 which provides:
[The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The “Openly Took” And No Concealment Requirements Apply Only To Embezzlement Prosecutions—The “openly took” and “no concealment” language in CALCRIM 1863, paragraphs 2 and 4 comes from PC 511 which relates to claim of right in embezzlement cases. People v. Wooten (1996) 44 CA4th 1834, 1848-49, the case relied upon by CC 1863 was an embezzlement case as were the cases cited by Wooten. All of those cases relied on the express language of PC 511 which states:
Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him.
No corresponding statutory language applies to claim of right in other larceny prosecutions such as receiving stolen property, theft, and robbery. Nor does the California Supreme Court’s latest case on claim of right or the LaFave and Scott treatise on criminal law even so much as mention any requirement that the property be taken openly and without concealment. (People v. Tufunga (1999) 21 C4th 935; see also LaFave and Scott, Substantive Criminal Law, §19.5(a); 20.3(b).)
Of course, such factors may well be relevant to whether or not the prosecution has proven criminal intent, but they should not be a complete bar to the use of claim of right to negate criminal intent in non-embezzlement prosecutions.
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 1863.2 Inst 6 Claim Of Right: Where Defendant Didn’t Actually Take The Property
*Modify CC 1863, paragraph 2 as follows [deleted language is stricken]:
The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Even if proper conceptually (but see FORECITE F 1863.2 Inst 5), the “openly took” requirement should be deleted in situations where the defendant did not personally take the property such as aiding and abetting, conspiracy and attempt prosecutions.
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 1863.2 Inst 7 (a & b) Claim Of Right On Behalf Of Another
*Add to CC 1863 as follows:
Alternative a [CC 3400 adaption]:
The prosecution must prove that the defendant had the criminal intent required to convict (him/her) of _______________ <insert charged offense>. The defendant contends (he/she) did not have any criminal intent because (he/she) honestly believed (he/she) had a lawful claim of right to the property. The prosecution must prove all elements of the charged _______________ <insert charged offense>, including criminal intent to steal the property, beyond a reasonable doubt. The defendant does not need to prove (he/she) had an honest belief in a claim of right to the property. If you have a reasonable doubt about whether the prosecution has disproved the claim of right allegation and proved beyond a reasonable doubt that the defendant had the required criminal intent, you must find the defendant not guilty.
Alternative b:
The defendant’s honest belief, even if mistakenly held, that [he] [she] had a right or claim to the possession of the property on behalf of another negates the felonious intent necessary to convict [him] [her] of [robbery] [burglary] or [theft].
The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to take the property on behalf of another will suffice so long as the claim was made in good faith.
If the evidence raises a reasonable doubt as to whether defendant acted under a bona fide belief in a right or claim to the property on behalf of another, you must find that defendant did not form the necessary felonious intent.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Right To Exercise Claim Of Right On Behalf Of Another—The claim of right defense is applicable when the defendant has “a subjective belief, he or she has a lawful claim on the property.” (People v. Romo (1990) 220 CA3d 514, 519.) Logically the defense also applies when the defendant is acting as an agent for another party who the defendant believes has a valid claim to the property. Thus, LaFave and Scott describe the scope of the defense as follows:
“(a) Claim of Right. One may take the property of another honestly but mistakenly believing (1) that it is his own property, or (2) that it is no one’s property, or (3) (though he knows it is another’s property) that the owner has given him permission to take it as he did. In any such event, he lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable. As to how the defendant can prove his claim that he actually had such an honest belief, it has been pointed out that the openness of the taking, as well as the reasonableness of the belief, though not conclusive, will buttress his claim of good faith. [footnotes omitted.]” (LaFave and Scott, Substantive Criminal Law, §19.5(a); see also Owens v. State (FL 2004) 866 So2d 129, 132; Ambrose v. Commonwealth (21) 129 Va. 763 [106 S.E. 348, 349] [“(A)lthough Mrs. Schnoele was not the owner, yet if the defendant honestly thought she was, and acted on that belief [when he acquired her estranged husband’s car], they should acquit him”].)
(See FORECITE F 9.40 n9.)
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.
NOTES
[See also FORECITE F 9.40a-c.]
CALJIC NOTE: See FORECITE F 4.001b/F 9.40b.
F 1863.2 Inst 8 Good Faith Intent To Return The Property As Defense Theory To Theft, Robbery Or Receiving Stolen Property Prosecution
*Replace CC 1863 with the following [CC 3400 adaption]:
The prosecution must prove that the defendant took the _______________ <property> with the intent to permanently deprive the owner of it. The defendant contends (he/she) did not have such intent because (he/she) intended to [return it to the owner] [turn it over to the police]; however, the defendant does not need to prove this. If, considering all the evidence, you have a reasonable doubt about whether the prosecution has proved that the defendant took the property with the intent to permanently deprive the owner of it, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Right To “Innocent Intent” Instruction Based On Alleged Intent To Return The Property—“One who takes another’s property intending at the time he takes it to use it temporarily and then to return it unconditionally within a reasonable time—and having a substantial ability to do so—lacks the intent to steal required for larceny. It should be noted that it is the intent to return the property, not its actual return, which constitutes the defense to larceny.” (LaFave & Scott, Substantive Criminal Law, §19.5(b) (2nd ed. 2003); see also CALCRIM 1751 [Defense to Receiving Stolen Property: Innocent Intent].)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [ee FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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.
F 1863.2 Inst 9 Claim Of Right—Unreasonable Belief In Right To Property
*Add as supplement to CC 1863:
The defendant’s honest belief, even if mistakenly held, that [he] [she] had a right or claim to the property taken negates the felonious intent necessary to convict [him] [her] of [robbery] [burglary] [or] theft.
The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to take the property will suffice so long as the claim was made in good faith.
If the evidence leaves you with a reasonable doubt as to whether defendant acted under a bona-fide belief in a right or claim to the property, you must find that defendant did not form the necessary felonious intent.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Claim Of Right Negates Felonious Intent—A claim of right defense is available in a robbery prosecution. People v. Tufunga (1999) 21 C4th 935, 950 held that a claim of right defense can negate “the animus furandi element of robbery where the defendant is seeking to regain specific property in which he in good faith believes he has a bona fide claim of ownership or title.” (See also People v. Butler (1967) 65 C2d 569, 573; People v. Hendricks (1988) 44 C3d 635, 642; People v. Gates (1987) 43 C3d 1168, 1182; People v. Navarro (1979) 99 CA3d Supp 1, 3.) So long as the claim is made in good faith, it need not be objectively reasonable and it may be based upon either a mistake of fact or a mistake of law. (People v. Romo (1990) 220 CA3d 514, 518; Witkin and Epstein, Calif. Crim. Law §586.)
However, the defense is not available if the claim is based on illegal activities (see Hendricks and Gates) or is founded on revenge. (People v. Romo at 518; People v. Alvarado (1982) 133 CA3d 1003, 1017.)
As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as alibi (CC 3400/CJ 4.50), unconsciousness (CC 3425/ CJ 4.31) or self-defense (CC 505/CJ 5.15), the jury should be instructed that the defendant need only leave them with a reasonable doubt as to mistake of fact. (See EC 502; People v. Simon (1995) 9 C4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; see also, People v. Wright (1988) 45 C3d 1126, 1136-37 [approving CJ 2.91 and CJ 4.50—which require acquittal if there is a reasonable doubt as to the defense]; People v. Tewksbury (1976) 15 C3d 953, 963-64, fn 9; FORECITE PG III(A).)
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.
NOTES
It is still unresolved whether the defense applies to self help; i.e., when property is taken to recoup an unliquidated debt or as recompense for unlawful property damage. (See FORECITE F 9.40 n9 above.)
CALJIC NOTE: See FORECITE F 9.40a.
F 1863.2 Inst 10 (a & b) Robbery/Theft: Good Faith Belief In Consent (PC 484 & PC 487)
*Add to CC 1863:
Alternative a [CC 3400 adaption]:
The prosecution must prove that the defendant took the property with criminal intent. The defendant contends (he/she) did not have criminal intent because (he/she) honestly believed that [the owner] [_______________ <insert name>] gave (him/her) permission to take the property; however, the defendant does not need to prove this. If you have a reasonable doubt about whether the prosecution has proved that the defendant did not honestly believe (he/she) had consent to take the property, you must find (him/her) not guilty.
Alternative b:
If one takes personal property of another with the good faith belief that [he] [she] [has permission to take the property] [__________] <insert other legal claim>, [he] [she] is not guilty of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict the defendant of theft.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction On Defense Theory—See FORECITE F 315.1.2 Inst 1.
Belief In Consent As Defense Theory—It is well settled that the felonious intent required for theft and robbery may be negated by the defendant’s good faith belief that it is the defendant’s property. (See People v. Tufunga (1999) 21 C4th 935; see also CALCRIM 1863.) A logical corollary to this principle is that the defendant’s good faith belief that he/she had a legal right to the property, such as permission of the owner, also negates felonious intent. (See People v. Navarro (1979) 99 CA3d Supp 1, 5-11; see also LaFave & Scott, Substantive Criminal Law, §20.3(b) fn. 18.) [See also FORECITE F 1863.2 Inst 4.]
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.
NOTES
The above instruction was erroneously refused in Navarro (99 CA3d at Supp 3) and People v. Williams DEPUBLISHED (1992) 9 CA4th 209
CALJIC NOTE: See FORECITE F 9.40c.
F 1863.2 Inst 11 Improper Instruction On Inference From Knowledge Of Facts Which Make Good Faith Belief Completely Unreasonable
*Delete CC 1863, paragraph 3, sentence 3, which provides as follows:
But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: Singling Out Particular Evidence For Comment—CALCRIM 1863, paragraph 3, sentence 3, singles out specific evidence and comments on what inference the jurors may draw from that evidence. Hence, the instruction is improperly argumentative. [See FORECITE F 416.3 Inst 4.]
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.
