SERIES 3300 NON-CALCRIM DEFENSES
F 3308 Jurisdiction
TABLE OF CONTENTS
F 3308 Inst 1 Defense Of Former Jeopardy
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F 3308 Inst 1 Defense Of Former Jeopardy
The defendant is not guilty of the crime charged against [him] [her] if you find that any of the elements of the present charge require proof of conduct for which the defendant has already been prosecuted.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Former Jeopardy As Defense Theory—Although rarely brought at trial, the question of former jeopardy is an issue of fact upon which a specific plea must be entered. (PC 1041.) The failure to enter this plea constitutes a waiver of the right to raise the defense. (People v. Belcher (1974) 11 C3d 91, 96 .)
Accordingly, in a former jeopardy case that is presented to the jury, the above instruction should be given. (See also Rucker & Overland, California Criminal Forms & Instructions §40:34 and §40:35.)
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.
CALJIC NOTE: See FORECITE F 4.007a.
