SERIES 3400 DEFENSES AND INSANITY
F 3403 Necessity
TABLE OF CONTENTS
F 3403 Inst 1 Preponderance Is Lesser Standard
F 3403 Inst 2 Necessity—Reasonable Foreseeability Based On Potential For Harm Not Actual Harm
F 3403 Inst 3 Reasonable Person Standard: Known And Apparent Circumstances
F 3403 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3403NOTES
F 3403 Note 1 “Medical Necessity” Defense For Possession Of Marijuana
Return to Series 3400 Table of Contents.
F 3403 Inst 1 Preponderance Is Lesser Standard
*Modify CC 3403, paragraph 3, sentence 2, as follows [added language is underlined; deleted language is stricken]:
This is a different lesser standard of proof than proof beyond a reasonable doubt.
Points and Authorities
See FORECITE F 418.5 Inst 5.
F 3403 Inst 2 Necessity—Reasonable Foreseeability Based On Potential For Harm Not Actual Harm
*Add CC 3403
In considering whether the defendant reasonably believed (he/she) needed to commit the act to prevent a significant bodily harm, consider the circumstances immediately prior to the act rather than a hindsight view of the harm actually caused.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—People v. Kearns (1997) 55 CA4th 1128, 1135; see also People v. Verlinde (2002) 100 CA4th 1146, 1166, fn 8.
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 4.3 [Affirmative Defense: Right To Instruction]
FORECITE CG 4.4 [Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3403 Inst 3 Reasonable Person Standard: Known And Apparent Circumstances
*Add to CC 3404, Element 5 [CC 505/851 Format]:
When evaluating whether the defendant reasonably believed (his/her) act was necessary under the circumstances, consider all the circumstances as they were known by and appeared to the defendant. That is, consider what conduct would have appeared to be necessary to a reasonable person in the [same situation as the defendant] [defendant’s situation] [defendant’s circumstances] with the same knowledge as the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Known To “And” Appeared To The Defendant—CALCRIM 505 uses “and” while CALCRIM 851 uses “or.” Because the jurors must consider all the circumstances as they appeared to the person being evaluated (see People v. Humphrey (1996) 13 C4th 1073, 1087, “and” is correct. [See also FORECITE F 820.5 Inst 3.]
Situation vs. Position vs. Circumstances—See FORECITE F 820.5 Inst 3..
Same vs. Similar—See FORECITE F 820.5 Inst 3..
“Would Have Appeared”—The change in tense is necessary to keep sentence 2 from CALCRIM 505 consistent with sentence 1.
Delete “Established By The Evidence”—See FORECITE F 402.5 Inst 1.
“If You Can”—See FORECITE F 100.7 Inst 1.
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 3403 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3403 NOTES
F 3403 Note 1 “Medical Necessity” Defense For Possession Of Marijuana
See CC 2360 and FORECITE F 2360 et seq.
