SERIES 3200 ENHANCEMENTS AND SENTENCING FACTORS
F 3261 During Commission Of Felony: Defined—Escape Rule
TABLE OF CONTENTS
F 3261.1 Titles And Identification Of Parties
F 3261.1 Inst 1 During Commission Of Felony: Defined—Escape Rule—Title
F 3261.1 Inst 2 Identification Of Prosecution And Defendant
F 3261.2 During Commission Of Felony: Defined—Escape Rule—Tailoring To Facts: Persons, Places, Things And Theories
F 3261.2 Inst 1 Modification Of Burden Shifting Language
F 3261.2 Inst 2 Temporary Safety: Modification Of Burden Shifting Language
F 3261.3 During Commission Of Felony: Defined—Escape Rule—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 3261.4 During Commission Of Felony: Defined—Escape Rule—Burden Of Proof Issues
F 3261.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3261.5 During Commission Of Felony: Defined—Escape Rule—Elements And Definitions [Reserved]
Return to Series 3200 Table of Contents.
F 3261.1 Titles And Identification Of Parties
F 3261.1 Inst 1 During Commission Of Felony: Defined—Escape Rule—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3261.1 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 3261.2During Commission Of Felony: Defined—Escape Rule—Tailoring To Facts: Persons, Places, Things And Theories
F 3261.2 Inst 1 Modification Of Burden Shifting Language
ALERT: [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333 held that the trial court should have instructed the jury, as requested, with CALCRIM 3261, on the theory that a homicide and an underlying felony do not constitute one continuous transaction for purposes of the felony-murder rule if the killer has escaped to a place of temporary safety before the homicide takes place. However, Wilkins did not address the burden shifting issue.
*Modify CC 3261 as follows [added language is underlined; deleted language is stricken]:
<Robbery>
[The crime of robbery [or attempted robbery] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The perpetrator[s] (has/have) reached a temporary place of safety if:
The prosecution is required to prove beyond a reasonable doubt that ____________ <name of perpetrator(s)> did not reach a place of temporary safety. To meet this burden the prosecution must prove one or more of the following:
• (He/She/They) (has/have) 1. ____________ <name of perpetrator(s)> did not successfully escaped from the scene; [and]
• (He/She/They) (is/are) 2. ____________ <name of perpetrator(s)> was/were no longer being chased(; [and]/.)
• [(He/She/They) (has/have) 3. ____________ <name of perpetrator(s)> did not [abandon or have unchallenged possession of the property taken in the robbery (;[and]/.)]
• [(He/She/They) (is/are) 4. ____________ <name of perpetrator(s)> was/were no longer in continuous physical control of the person ________________ <person alleged to be the target of the robbery> who is was the target of the robbery.]]
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 3261.2 Inst 2 Temporary Safety: Modification Of Burden Shifting Language
ALERT: [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333 held that the trial court should have instructed the jury, as requested, with CALCRIM 3261, on the theory that a homicide and an underlying felony do not constitute one continuous transaction for purposes of the felony-murder rule if the killer has escaped to a place of temporary safety before the homicide takes place. However, Wilkins did not address the burden shifting issue.
*Modify CC 3261, Burglary, after sentence 1 [added language is underlined; deleted language is stricken]:
<Burglary>
[The crime of burglary [or attempted burglary] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The prosecution must prove beyond a reasonable doubt that _______________<name of perpetrator(s)> did not actually reach a temporary place of safety. To do so the prosecution must prove beyond a reasonable doubt any of the following: The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene[,] [and] (is/are) no longer being chased[, and (has/have) unchallenged possession of the property].]
• (He/She/They) (has/have) 1. ____________ <name of perpetrator(s)> did not successfully escaped from the scene; [and]
• (He/She/They) (is/are) 2. ____________ <name of perpetrator(s)> was/were no longer being chased(; [and]/.)
• [(He/She/They) (has/have) 3. ____________ <name of perpetrator(s)> did not [abandon or have unchallenged possession of the property taken in the burglary (;[and]/.)]
• [(He/She/They) (is/are) 4. ____________ <name of perpetrator(s)> was/were no longer in continuous physical control of the person ________________ <person alleged to be the target of the burglary> who is was the target of the burglary.]]
*Modify CC 3261, Sexual Assault, after sentence 1 [added language is underlined; deleted language is stricken]:
<Sexual Assault>
[The crime of __________ <insert sexual assault alleged> [or attempted
__________ <insert sexual assault alleged>] continues until the perpetrator[s]
(has/have) actually reached a temporary place of safety. The prosecution must prove beyond a reasonable doubt that _______________<name of perpetrator(s)> did not actually reach a temporary place of safety. To do so the prosecution must prove beyond a reasonable doubt any of the following:The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene[,] [and] (is/are) no longer being chased[,and (is/are) no longer in continuous physical control of the person who was the target of the crime].]
• (He/She/They) (has/have) 1. ____________ <name of perpetrator(s)> did not successfully escaped from the scene; [and]
• (He/She/They) (is/are) 2. ____________ <name of perpetrator(s)> was/were no longer being chased(; [and]/.)
• [(He/She/They) (is/are) 4. ____________ <name of perpetrator(s)> was/were no longer in continuous physical control of the person ________________ <person alleged to be the target of the sexual assault> who is was the target of the sexual assault.]]
*Modify CC 3261, Kidnapping, after sentence 1 [added language is underlined; deleted language is stricken]:
<Kidnapping>
[The crime of kidnapping [or attempted kidnapping] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The prosecution must prove beyond a reasonable doubt that _______________<name of perpetrator(s)> did not actually reach a temporary place of safety. To do so the prosecution must prove beyond a reasonable doubt any of the following: The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene, (is/are) no longer being chased, and (is/are) no longer in continuous physical control of the person kidnapped.]
• (He/She/They) (has/have) 1. ____________ <name of perpetrator(s)> did not successfully escaped from the scene; [and]
• (He/She/They) (is/are) 2. ____________ <name of perpetrator(s)> was/were no longer being chased(; [and]/.)
• [(He/She/They) (is/are) 4. ____________ <name of perpetrator(s)> was/were no longer in continuous physical control of the person ________________ <person alleged to be the target of the kidnapping> who is was the target of the kidnapping.]]
*Modify CC 3261, Other Felony, after sentence 1 [added language is underlined; deleted language is stricken]:
<Other Felony>
[The crime of __________ <insert felony alleged> [or attempted __________
<insert felony alleged>] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The prosecution must prove beyond a reasonable doubt that _______________<name of perpetrator(s)> did not actually reach a temporary place of safety. To do so the prosecution must prove beyond a reasonable doubt any of the following: The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene and (is/are) no longer being chased.]
• (He/She/They) (has/have) 1. ____________ <name of perpetrator(s)> did not successfully escaped from the scene; [and]
• (He/She/They) (is/are) 2. ____________ <name of perpetrator(s)> was/were no longer being chased(; [and]/.)
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 3261.3 During Commission Of Felony: Defined—Escape Rule—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 3261.4 During Commission Of Felony: Defined—Escape Rule—Burden Of Proof Issues
F 3261.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 3261.5 During Commission Of Felony: Defined—Escape Rule—Elements And Definitions [Reserved]