SERIES 3400 DEFENSES AND INSANITY
F 3425 Unconsciousness
TABLE OF CONTENTS
F 3425 Inst 1 (a & b) Unconsciousness: Modification Of Burden Shifting Language
F 3425 Inst 2 Instruction That Jurors “Should” Find Consciousness If The Defendant Acted As If Conscious As Improper Presumption And Argument
F 3425 Inst 3 Unconsciousness: Listed Examples Not Exclusive
F 3425 Inst 4 Voluntary Intoxication As Cause Of Unconsciousness
F 3425 Inst 5 Jurors Must Unanimously Reject Any Defenses Before Convicting
Return to Series 3400 Table of Contents.
F 3425 Inst 1 (a & b) Unconsciousness: Modification Of Burden Shifting Language
Alternative a:
*Modify CC 3425, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
The defendant is not guilty of ________ <insert crime[s]> if unless (he/she) acted _______________ <insert alleged act> while legally unconscious and with the required intent and/or mental state.
Alternative b:
*Replace CC 3425 with the following:
The prosecution must prove beyond a reasonable doubt that the defendant committed the crime while conscious. The defendant contends that (he/she) was unconscious [even though (he/she) acted as if (he/she) were conscious]. [Someone maybe unconscious even though able to move.] The prosecution must prove that the defendant was legally conscious by proving beyond a reasonable doubt that (he/she) was conscious of (his/her) actions when the [alleged] crime was committed.
If you have a reasonable doubt whether the defendant was conscious of (his/her) actions when (he/she) [allegedly] committed the acts alleged by the prosecution you must find (him/her) not guilty.
A reasonable doubt that defendant was conscious may be based on conditions such as, but not limited to, the following:
[A blackout] [and/or]
[An epileptic seizure] [and/or]
[Involuntary intoxication] [and/or]
[Sleepwalking] [and/or]
[___________] <insert a similar condition>.
Points and Authorities
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2; see also FORECITE F 3402 Inst 1.
Examples Not Exclusive—See FORECITE F 3425 Inst 3.
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 3425 Inst 2 Instruction That Jurors “Should” Find Consciousness If The Defendant Acted As If Conscious As Improper Presumption And Argument
ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its December 2008 revisions.
*Modify CC 3425, paragraph 3, sentence 2 & 3, as follows [deleted language is stricken]:
If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, 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.]
The CALCRIM Deficiency—The Commentary to CALCRIM 3425 correctly observes that any presumption of consciousness goes to the defendants burden of producing evidence and should not be included in any instruction to the jury.
However, the instructional formation of CC 3425 utilizes a kind of presumption by instructing that: “If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious.” This language implies that the defense must convince the jurors not to follow the instruction’s admonition that they “should conclude [the defendant] was conscious.”
Hence, the instruction unconstitutionally shifts the burden of proof to the defense. (See FORECITE F 401.6 Inst 1; F 404.2 Inst 1.)
Moreover, to the extent that the instruction is construed as an advisory comment rather than a form of presumption it is improperly argumentative. (See FORECITE F 416.3 Inst 4.)
Finally, the CALCRIM language also conflicts with People v. Newton (1970) 8 CA3d 359, 376:
‘Unconsciousness,’ as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist – and the above-stated rule can apply – where the subject physically acts in fact but is not, at the time, conscious of acting.
If a defendant who physically acts as if conscious can actually be unconscious then CALCRIM’s language cannot be correct.
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
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 3425 Inst 3 Unconsciousness: Listed Examples Not Exclusive
*Replace CC 3425, paragraph 2, with the following [CC 105/1156 adaption]:
Among the things that cause unconsciousness are (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] sleepwalking[,]/ or ________ <insert a similar condition>).
This list of factors is not intended to be complete. It is provided only to give examples of things that may cause unconsciousness.
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 3425 fails to make it clear that the examples given are not the only potential causes of unconsciousness.
Jurors Should Be Instructed That Examples Are Not Exclusive—See FORECITE F 105.2 Inst 2.
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]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3425 Inst 4 Voluntary Intoxication As Cause Of Unconsciousness
*Modify CC 3425 paragraph 2, when appropriate, as follows [deleted language is stricken]::
Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/. . .
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 3425 limits consideration of intoxication vis-a-vis unconsciousness to “involuntary” intoxication. Unconsciousness as a result of voluntary intoxication may negate required mental elements of the charge other than general intent. (See People v. Ochoa (1998) 19 C4th 353, 423-24.)
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]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3425 Inst 5 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
