SERIES 3400 DEFENSES AND INSANITY
F 3426 Voluntary Intoxication
TABLE OF CONTENTS
F 3426 Inst 1 Modification Of Burden Shifting Language
F 3426 Inst 2 Jurors Must Consider Intoxication Evidence
F 3426 Inst 3 Deletion Of Misleading “Assuming The Risk” Language
F 3426 Inst 4 Improper Reference To Voluntary Intoxication As A “Defense”
F 3426 Inst 5 Negation Of Knowledge And Intent Elements Of Aiding And Abetting
F 3426 Inst 6 Deletion Of The Term “Voluntary” In Describing Intoxication
F 3426 Inst 7 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3426 Inst 8 Consideration Of Intoxication Regarding Voluntariness And Trustworthiness Of Defendant’s Statements
Return to Series 3400 Table of Contents.
F 3426 Inst 1 Modification Of Burden Shifting Language
*Replace CC 3426 with the following [CC 3400 adaption]:
The prosecution must prove that the defendant committed ____________ <insert crime[s] charged> with ___________________<insert specific intent or mental state required>. The defendant contends that (he/she) did not have the required [intent] [and] [mental state] due in whole or part to (his/her) voluntary intoxication. However, the defendant does not need to prove that (he/she) did not have the required [intent] [and] [mental state].
If you have a reasonable doubt about whether the defendant committed the crime with ___________________<insert specific intent or mental state required> you must find the defendant not guilty.
Points and Authorities
See CALCRIM 3402 Inst 1.
F 3426 Inst 2 Jurors Must Consider Intoxication Evidence
*Replace CC 3426, paragraph1, with the following [CC 3427 adaption]:
Consider any evidence that the defendant was voluntarily intoxicated in deciding whether the defendant committed the alleged act [or failed to act] with _______________ <insert specific intent or mental state required>. Do not consider evidence of voluntary intoxication for any other purpose.
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 3426 fails to clearly and plainly instruct the jurors to consider intoxication. (Compare CC 3427 from which the above instruction is adapted.)
(See FORECITE F 105.2 Inst 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 3426 Inst 3 Deletion Of Misleading “Assuming The Risk” Language
*Modify CC 3426, paragraph 2, as follows [deleted language is stricken]:
A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
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 “assuming the risk” language could erroneously mislead the jurors into concluding that the defendant must assume the risk of being convicted even though his intoxication precluded his formation of a required intent or mental state. Thus, the instruction may improperly allow conviction without requiring the jurors to find all essential facts and elements of the charge. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].)
Moreover, the assumption of risk language is superfluous irrelevant wording which risks misleading the jury to the defendant’s prejudice. (See FORECITE F 625.2 Inst 5.)
Delete “Voluntary” – See FORECITE F 625.2 Inst 5.
See also FORECITE F 103.2 Inst 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]
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 3426 Inst 4 Improper Reference To Voluntary Intoxication As A “Defense”
*Delete CC 3426, paragraph 6, sentence 2, as follows:
[Voluntary intoxication is not a defense to __________<insert general intent offense[s]>.]
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 3426 Inst 5 Negation Of Knowledge And Intent Elements Of Aiding And Abetting
*Replace CC 3426, paragraph 4, sentence 1, as follows [added language is underlined; deleted language is stricken]:
In connection with the charge of ________ <insert first charged offense requiring specific intent or mental state>, the People have prosecution has the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with ________ <insert specific intent or mental state required, e.g., “the intent to permanently deprive the owner of his or her property” or “knowledge that. . .”> intentionally and knowingly committed [an act] [_______________ <insert alleged act>] which aided and abetted _______________ <name of alleged perpetrator> in committing the crime.
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 3426 fails to specify which act or acts must be committed with the required intent or mental state. In the case of aiding and abetting, the act which aids and abets must be committed with the required knowledge of and intent to commit the target offense. (People v. Mendoza (1998) 18 C4th 1114, 1131.) Therefore, “although knowledge ‘may not fall literally within the Hood (People v. Hood (1969) 1 C3d 444) formulation of specific intent, the element [of aiding and abetting liability] that requires that the defendant act with knowledge of [the perpetrator’s criminal intent] is closely akin to Hood‘s definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.’ [Citation.]” (Mendoza, 18 C4th at 1131; see also People v. Reyes (1997) 52 CA4th 975 [evidence of voluntary intoxication or mental disease or defect may be presented per PC 22 and PC 28 to negate knowledge element of receiving stolen property].)
NOTES:
There is a sua sponte duty to instruct on knowledge when it is an element. (People v. Reynolds (1988) 205 CA3d 776, 778-81.)
[RESEARCH NOTE: See FORECITE BIBLIO 4.20, et al.]
CALJIC NOTE: See FORECITE F 4.21 n4.
F 3426 Inst 6 Deletion Of The Term “Voluntary” In Describing Intoxication
*Modify CC 3426 as follows:
[Delete the term “voluntary” unless voluntariness is an issue]
Points and Authorities
See FORECITE F 625.2 Inst 5.
F 3426 Inst 7 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3426 Inst 8 Consideration Of Intoxication Regarding Voluntariness And Trustworthiness Of Defendant’s Statements
[When appropriate modify CC 3426 to allow consideration of defendant’s intoxication as to the voluntariness or credibility of his/her pretrial statements, confessions, and/or admissions]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – It is well established that a person’s intoxication is a factor to consider regarding the truthfulness or credibility of that person’s statements or testimony. (See e.g., FORECITE F 105.2 Inst 3.) This is so because the person’s ability to perceive and remember events may be impaired by alcohol or drug addiction. (See, People v. Barnett (1976) 54 CA3d 1046, 1050, fn. 2; U.S. v. Fajardo (11th Cir. 1986) 78 F2d 1523, 1527.)
Accordingly, when the defendant challenges the truthfulness or voluntariness of his/her pretrial statements based in whole or part upon intoxication (see FORECITE F 358 Inst 6) CC 3426 and any other instructions specifically addressing intoxication (e.g., CC 625 and CC 626) should not limit consideration of intoxication should not be limited to the issue of intent.
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 5.5 [Defendant’s Statements/Adoptive Admissions]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
