SERIES 3300 NON-CALCRIM DEFENSES
F 3310 COMMISSION OF UNCHARGED NON-INCLUDED OFFENSE
TABLE OF CONTENTS
F 3310 Inst 1 Defense Theory That Defendant Committed Uncharged Non-Included Offense And Not The Charged Offense
F 3310 Inst 2 Explanation That Jury Has No Option Other Than Conviction Of Charged Offense Or Acquittal Due To Prosecution’s Charging Decision
Return to Series 3300 Table of Contents.
F 3310 Inst 1 Defense Theory That Defendant Committed Uncharged Non-Included Offense And Not The Charged Offense
Alternative a [CALCRIM 3400 format]:
The prosecution must prove the defendant committed the crime[s] of _____________<insert alleged crime[s]>. The defendant contends (he/she) did not commit (this crime/these crimes) and instead (he/she) committed the crime of __________ which the prosecution has chosen not to charge
If you have a reasonable doubt about whether the defendant about whether the prosecution has met its burden of proving defendant guilty of _________<insert charged offense> as opposed to _________<uncharged offense> you must vote to find the defendant not guilty.
Alternative b [CALCRIM 350 format]:
You have heard evidence that defendant committed ______________<insert name of non-included related offense> but not _____________<charged offense>. Consider that evidence, along with all the other evidence in attempting to decide whether the prosecution has proved the defendant guilty of _____________<charged offense> beyond a reasonable doubt. Remember that you may not convict the defendant of _____________ <charged offense> unless the prosecution has proved each fact essential to the conclusion that the defendant is guilty of that crime.
Alternative c [CJ 4.50 format]:
The defendant in this case has introduced evidence for the purpose of showing that he committed the crime of ____________<insert uncharged lesser related> but not the crime of _____________<insert charged offense>. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant committed the charged crime, you must find [him] [her] not guilty of any offense because the prosecutor opted to not charge the offense of ______________ <insert uncharged lesser related>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
Commission of Non-Included Uncharged Offense As Defense Theory – There can be no dispute that a defendant has the right to present evidence of a defense theory that he committed a non-included uncharged offense but not the charged offense. For example, evidence that the defendant merely assisted the culprits after the crime was completed would be admissible in support of a defense theory that the defendant is only guilty of being an accessory after the fact. (See U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1004.) Such a theory is operatively analogous to other defense theories such as third party guilt which rely on affirmative evidence to raise a reasonable doubt that the defendant is guilty of the charged offense and, hence, the right to present such a defense is constitutionally guaranteed:
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” (Crane v. Kentucky (1986) 476 US 683, 690 [90 LEd2d 636; 106 SCt 2142 ; see also Holmes v. South Carolina (2006) 547 US 319 [164 LEd2d 503; 126 SCt 1727].)
However, the opportunity to present a defense is not “meaningful” unless the jurors are informed about that defense and how it relates to the prosecution’s burden of proof. “Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.” (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02; cf., Abdul-Kabir v. Quarterman (2007) 550 US 233 [167 LEd2d 585; 127 SCt 1654] [“right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration in imposing sentence” (internal citations and quotation marks omitted).].)
In other words, the defendant has a constitutional right to present the evidentiary basis for the defense, to argue the defense theory to the jurors and to a “pinpoint” defense theory instruction which relates the theory to the prosecution’s burden of proof. (See e.g., Mathews v. United States (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] citing Stevenson v. United States (1896) 162 US 313 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; People v. Wright (88) 45 C3d 1126, 1138-39 [Approving defense instructions which “pinpoint[] the theory of the defense . . . and charge[] the jury on how to relate the evidence of that defense to the prosecution’s general burden of proving guilt beyond a reasonable doubt.”]; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201.)
It is true that domestic rules of evidence may be used “to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues.” (Holmes v. South Carolina, 547 US at 330.) However, a defense theory that the defendant committed an uncharged offense and not the charged one is directly connected to the most central issue of all – whether the prosecution has proved beyond a reasonable doubt that the defendant committed the charged offense. For example, a defendant’s testimony that he only assisted after the crime should justify instruction on a defense theory of accessory after the fact. (See U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1004. ) Similarly, in Sanborn v. Commonwealth (Kentucky 1988) 754 SW2d 534, the defendant in a rape case had a right to an instruction on the lesser related offense of abuse of a corpse based on the defense theory that the sex acts occurred after the victim was dead.
The defendant will be denied a “meaningful opportunity” to present a defense unless his request for an instruction on his uncharged included lesser defense theory is given.
Right To Argue The Uncharged Lesser Theory – Apart from the right to instruction on the non-included offense theory, the defense should be permitted to argue such a theory. For example, in People v. Valentine (2006) 143 CA4th 1383, the defendant was charged with robbery. He contended he was guilty only of receiving stolen property. The defendant acknowledge that he no longer had the right to instructions on the lesser related offense in order to urge the jury to convict him of that crime. Instead, he argued that he had a right to instruction on receiving stolen property as a defense theory that he was not guilty of the robbery with which he was charged. However, the defendant only requested instruction on the elements of the lesser related and apparently did not request a “pinpoint” defense theory instruction. And, the appellate court concluded that he was not entitled to such an instruction. However, the court said “We do not suggest . . . that Valentine could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery.” (People v. Valentine, supra, 143 CA4th 1383, 1389, see also People v. Birks (1998) 19 C4th 108, 136, fn 19 re: “[N]othing in ourt holding prevents the defendant from arguing in any case that the evidence does not support conviction of any charge properly before the jury, and that complete acquittal is therefore appropriate.”]; compare People v. Yeoman (2003) 31 C4th 93, 129 [instruction on theft from a dead human body precluded because it was not a lesser included offense of robbery; no discussion of right to argument and instruction on it as a defense theory].)
Strategy Note – If the trial court takes the Valentine approach and allows argument – but not instruction – on this defense theory then counsel may wish to consider the various tactical discussed in FORECITE F 200.5 Inst 2 for assuring the jurors that they may rely on the argued theory even though it is not specifically included in the instructions.
“Consider” vs. “May Consider”– See FORECITE F F 105.2 Inst 1.
“Attempting To Decide” – See FORECITE F 100.7 Inst 1.
“Prosecution Must Prove” vs. “You Must Be Convinced” – See FORECITE F 224 Inst 5.
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 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 3310 Inst 2 Explanation That Jury Has No Option Other Than Conviction Of Charged Offense Or Acquittal Due To Prosecution’s Charging Decision
_______________________ <insert related offense, e.g., accessory after the fact> is an offense which is related to the charge of _______________________ <insert charged offense>. However, because the prosecution did not charge the ____________________ offense you may not find the defendant guilty of it.
If you find that the defendant committed _________________ <related offense> but not _____________________ <charged offense> you must acquit because it was the prosecution’s choice that you only be permitted to choose between conviction of ______________________ <charged offense> and acquittal.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
Commission Of Non-Included Uncharged Offense As Defense Theory – See FORECITE 3310 Inst 1.
Guilt of Uncharged lesser Related Requires Acquittal of Charged Offense – The prosecution, through its charging power, has control over whether or not the jury will have the option of convicting the defendant of a related but not necessarily included offense. As a result the prosecution may unfairly put the defendant at a disadvantage by forcing the jury to make an all-or-nothing choice when the defendant is obviously guilty of some wrongdoing. Therefore, the defense should have the right to inform the jury why it has no other option than acquittal if the charged offense has not been proven. (See generally Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].); see also People v. Preston (1973) 9 C3d 308, 318-9 [jury instructed on both the charged offense [murder] and the uncharged offense [accessory]]; see also People v. Johnson (1950) 99 CA2d 717, 725, 727, 732-3.
Strategy Note – If the trial court takes the Valentine approach and allows argument – but not instruction – on this defense theory then counsel may wish to consider the various tactical discussed in FORECITE F 200.5 Inst 2 for assuring the jurors that they may rely on the argued theory even though it is not specifically included in the instructions.
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.
