SERIES 3500 POST-TRIAL: CONCLUDING
F 3500.2 Unanimity: Basic Instructions
TABLE OF CONTENTS
F 3500.2 Inst 1 Unanimity: Enumeration Of Acts
F 3500.2 Inst 2 Unanimity: Enumeration Of Acts; Concurrence Of Act And Intent/Mental State
F 3500.2 Inst 3 Special Unanimity Instruction For Continuous Course Of Conduct Offenses
F 3500.2 Inst 4 (a-d) Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3500.2 Inst 5 Adaption Of Unanimity Instruction To Multiple Counts
Return to Series 3500 Table of Contents.
F 3500.2 Inst 1 Unanimity: Enumeration Of Acts
*Replace CC 3500, paragraph 2, sentence 1, with:
The prosecution contends that [either] [any] of the following acts are sufficient to constitute the crime of ________________ <insert crime> as charged in Count ____:
[Enumerate Acts]
Points and Authorities
“The Prosecution Contends” —CALCRIM 3500 improperly informs the jurors that the prosecution has “presented evidence” on certain matters. This is an unwarranted comment on the evidence which invades the province of the jury. It is the jurors who must determine the meaning and import, if any, of the prosecution’s evidence. “A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ [Citation.] Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ [Citation.]” (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) “Implicit in the right to trial by jury afforded criminal defendants under the Sixth Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses.” (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] [” … the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials …” ]; United States v. Geston (9th Cir. 2002) 299 F3d 1130 [prosecutor’s repeated questions to defense witnesses, asking whether, if a government witness had testified to a specific fact, that witness would be lying, impacted defendant’s due process rights]; United States v. Rockwell (3rd Cir. 1986) 781 F2d 985, 991 [instructions which “improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses … [were] sufficiently misleading to deprive Rockwell of a fair trial” ]; Snowden v. Singletary (11th Cir. 1998) 135 F3d 732, 738 [allowing expert testimony that 99% of child sexual abuse victims tell the truth usurped the jury’s fact-finding role and made the trial fundamentally unfair].)
Enumeration Of Acts—This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to the California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless each discrete element of the charged offense is separately enumerated, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to clearly and expressly enumerate each discrete element in the body of the instructions to assure that the jurors will understand precisely what the prosecution must prove. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741 [Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition]; see also generally Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942.) This in turn violates the constitutional requirement that the prosecution prove every essential fact and element of the crime beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].)
(2) Enumerating some elements and not others and, thus, failing to assure that the jurors will consider each element on an equal footing and not give certain elements more or less consideration. (See generally FORECITE PG X(D)(5) [jurors may reasonably drawn improper inferences from inconsistencies in the instructions].) Undue emphasis of particular elements or instructions violates the defendant’s right to a fair and impartial trial by jury and to instructions which are fairly balanced. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; Cool v. United States (1972) 409 US 100 [34 LEd2d 335; 93 SCt 354]; United States v. Harbin (7th Cir. 2001) 250 F3d 532; [See also FORECITE CG 5.4.3 and CG 6.5].)
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 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3500.2 Inst 2 Unanimity: Enumeration Of Acts; Concurrence Of Act And Intent/Mental State
*Replace CC 3500 with:
The prosecution contends that [either] [any] of the following acts are sufficient to constitute the crime of ________________ <insert crime> as charged in Count:
[Enumerate Acts]
You must not find the defendant guilty unless you all agree that the defendant committed at least one of these acts with the required intent [and mental state(s) and you all agree on which act (he/she) committed.
Points and Authorities
“The Prosecution Contends” —Stating that the prosecution “presented evidence” is an improper comment on the evidence. (See FORECITE F 3500.2 Inst 1.)
Enumeration Of Acts—Required for precision and due process notice. (See FORECITE F 3500.2 Inst 1.)
Concurrence Of Act And Intent/Mental State—See FORECITE F 251 Inst 3.
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 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3500.2 Inst 3 Special Unanimity Instruction For Continuous Course Of Conduct Offenses
*Add to CC 3500 when appropriate:
The crime of __________ is a continuous course of conduct offense. This means that it is not necessary for all jurors to unanimously agree that the defendant committed any particular act.
However, the defendant may not be convicted of a continuous course of conduct offense based on the commission of an act or acts which do not amount to a continuous course of conduct. To prove a continuous course of conduct, the prosecution must prove beyond a reasonable doubt that the conduct took place repeatedly throughout the charged period of time. Unless all jurors agree that the conduct took place repeatedly throughout the charged period of time, the defendant may not be convicted of __________.
Points and Authorities
As to continuing course of conduct offenses, there is no requirement of juror unanimity as to specific acts because the offense is of a continuing nature and is committed by “a series of acts, which if individually considered, might not amount to a crime, but the cumulative effect is criminal.” (People v. Epps (1981) 122 CA3d 691, 702; see also People v. Sanchez (2001) 94 CA4th 622, 632-33.)
“The courts have looked to the statutory language to determine whether the legislature intended to punish individual acts or entire wrongful courses of conduct and have concluded that when the language of the statute focuses on the goal or affect of the offense, the offense is a continuing offense.” (People v. Sanchez (2001) 94 CA4th 622, 632; see also People v. Salvato (1991) 234 CA3d 872, 882-83 [dissuading a witness]; People v. Avina (1993) 14 CA4th 1303, 1311 [residential child molestation].) Other courts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, and aimed at a single objective. (See People v. Dieguez (2001) 89 CA4th 266, 275.)
While there is no need for the jury to agree as to any particular act offered to prove a continuous course of conduct offense, the jury must unanimously agree that such a continuing course of conduct did occur and may not convict based on any single act or acts that do not constitute such a continuous course of conduct. As observed by the Sanchez court in discussing the offense of animal cruelty under PC 597(b): “The third theory under which the statute may be violated, failing to provide food, water and shelter, defines an offense that for purposes of our discussion here, is no different than the continuing offense of failing to provide food and shelter for a minor child. [Citations.] Certainly malnourishment, starvation and dehydration are the results of a continuous failure to provide adequate food and water rather than the failure to provide food and water on one occasion.” [Emphasis added.] (Sanchez, 94 CA4th at 633.)
In sum, a single act may not be a sufficient predicate for conviction when the crime charged is a continuous-course-of-conduct offense. In such cases, therefore, the jury must be instructed to unanimously agree as to a continuous course of conduct and not find the defendant guilty based on a single act or acts not amounting to a continuous course of conduct. (See, e.g., CC 1010 [stalking].)
(See FORECITE F 17.01 n37.)
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 12.2 [Duplicity/Unanimity]
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 17.01e.
F 3500.2 Inst 4 (a-d) Jurors Must Unanimously Reject Any Defenses Before Convicting
*Add to CC 3500:
Alternative a [defense which negates element of the charge]:
The prosecution must prove beyond a reasonable doubt that the defendant did not _______________ <insert defense theory (e.g., act in self-defense)> as defined elsewhere in these instructions. Unless you all unanimously find that the prosecution has met its burden of disproving __________ <defense theory>, you may not find the defendant guilty of _______________ <insert applicable charge(s)>.
Alternative b [affirmative defense]:
The defendant has raised the affirmative defense of _______________ <insert affirmative defense (e.g., necessity)> as defined elsewhere in these instructions. Unless you all unanimously find that the defendant failed to prove this defense by a preponderance of the evidence, you may not find the defendant guilty of _______________ <insert applicable charge(s)>.
Alternative c [further clarification: defense which negates element]:
If one or more jurors have a reasonable doubt that the prosecution disproved _______________ <insert defense (e.g., self-defense)>, then you may not find the defendant guilty.
Alternative d [further clarification: affirmative defense]:
If one or more jurors find that the defendant _______________ <insert affirmative defense (e.g., acted out of necessity)>, then you may not find the defendant guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Jurors Must Unanimously Reject Affirmative Defense—An affirmative defense—which must be proven by the defense—negates guilt even if all elements of the charge have been proven beyond a reasonable doubt. (E.g., insanity; entrapment in jurisdictions placing burden on the defense.) Logically, therefore, the jurors should not be permitted to find the defendant guilty unless all jurors (or the required number of jurors in jurisdictions allowing non-unanimous conviction) have rejected the affirmative defense. (See U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050.) This logic has been explained in the civil context as follows:
” … [A] defendant cannot be held liable until the jury unanimously rejects an affirmative defense.” (Jazzabi v. Allstate Ins. Co. (9th Cir. 2002) 278 F3d 979, 982-83; see also Baxter Healthcare Corp. v. Spectramed, Inc. (Fed. Cir. 1995) 49 F3d 1575, 1579-80, 1583-84 [affirming a district court’s refusal to enter judgment for plaintiff on two special interrogatories setting forth affirmative defenses when the jury did not unanimously agree on answers to the interrogatories]. As explained in Jazzabi, “elements and affirmative defenses are co-equal components of the jury’s liability determination: Liability cannot be established until after the jurors unanimously agree that the elements are satisfied and they unanimously reject the affirmative defenses.” (278 F3d at 984.)
The same logic applies with at least equal force to affirmative defenses in criminal cases. If a juror finds that the government has proven each element of the offense beyond a reasonable doubt, and also finds that the defendant has not proven insanity by clear and convincing evidence, he must find the defendant guilty. If another juror finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven insanity by clear and convincing evidence, he must find the defendant not guilty by reason of insanity. [Footnote omitted.] Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury. (United States v. Southwell (9th Cir. 2005) 432 F3d 1050, 1054-1055.)
For example, in State v. Miyashiro (Haw. Ct. App. 1999) 90 Haw. 489, 979 P2d 85, the Hawaii Intermediate Court of Appeals held that an affirmative defense must be unanimously rejected before a defendant can be found guilty:
If the jurors unanimously agreed that all the elements of the charged offense have been proved beyond a reasonable doubt but are unable to reach unanimous agreement as to the affirmative defense of entrapment, no unanimous verdict can be reached as to the charged offense because some jurors would vote for conviction and others for acquittal. In such instance, a mistrial would have to be declared due to the hung jury.
(Id. at 95; see also People v. McIntyre (1990) 222 CA3d 229 [“If the jury did not agree on entrapment, there was a hung jury.”].) This rationale applies equally to the insanity defense: “The jury’s determination on an insanity defense is as demanding of unanimity as is the determination on the plea of not guilty…. If the jury could not agree upon defendant’s sanity then no verdict could be reached.” (State v. Harris (R.I. 1959) 152 A2d 106, 109; see also State v. Uyesugi (Haw. 2002) 100 Haw. 442, 60 P3d 843, 857-60 [defendant’s statement “that before reaching a guilty as charged verdict, rejection of the mental defense must also be unanimous … sets forth a correct statement of the law”] (internal quotation marks omitted).)
The United States Supreme Court has recognized the issue without resolving it. (Compare McKoy v. North Carolina (1990) 494 US 433, 450-51 [108 LEd2d 369; 110 SCt 1227, (Blackmun, J., concurring) [“The dissent’s analogy presumes that once the elements of an offense have been proved, the jury’s failure to agree as to an affirmative defense results in a conviction … but our cases do not say that, and it is not at all clear that a conviction, rather than a hung jury, would be the outcome.” (citing State v. Harris (R.I. 1959) 89 R.I. 202, 152 A.2d 106, 109)]; with id. at 467 n.4 (Scalia, J., dissenting, joined by Rehnquist, C.J., and O’Connor, J.) [“If the jurors follow their instructions, it would appear that the jury that has considered but not unanimously found an affirmative defense must return a verdict of guilty.”].)
Accordingly, because most, if not all, state and federal decisions which have considered the issue require unanimous rejection of affirmative defenses, the above instruction should be given.
Jurors Must Unanimously Reject Defense Theories Which Negate An Element Of The Charge—In the case of defense theories which negate an element of the charge, it could be reasoned that by finding all the elements of the charge the jurors necessarily rejected the defense. However, in the absence of clear and express instruction, there is no assurance of juror understanding. (See e.g., People v. Brown (1984) 152 CA3d 674, 677-78 [Former CALJIC 2.91 and 2.20 “are not alone sufficient to render the failure to give requested instruction linking reasonable doubt to identification harmless error”]; People v. Adrian (1982) 135 CA3d 335, 342 [general burden of proof instruction insufficient to pinpoint specific defense theory]; see also People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)
Moreover, the proposition that the jurors must unanimously reject a defense theory which negates an element is certainly a correct statement of the law. (See generally EC 501; People v. Tewksbury (1976) 15 C3d 953, 963; Rock v. Arkansas (1987) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Chambers v. Mississippi (1973) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; United States v. Sayetsitty (9th Cir. 1997) 107 F3d 1045, 1414.)
In sum, because the instruction is necessary for the jurors’ understanding and is a correct statement of the law, it should be given. (See U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050; see also generally Bollenbach v. U.S. (1946) 326 US 607, 612-613 [90 LEd 350; 66 SCt 402]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833.)
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3500.2 Inst 5 Adaption Of Unanimity Instruction To Multiple Counts
Add to substantive elements instruction when appropriate:
You may not find the defendant guilty of Count(s) ________ <insert Count No(s).> unless you all agree as to each such count that the People have proved that the defendant ________ <insert actus reus and required agreement, e.g., received, concealed or withheld from its owner at least one item of property that had been stolen, and you all agree on which item of property has been received, concealed or withheld as to each count>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – See FORECITE F 1750.8 Inst 1.
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 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.