Spring2008 Newsletter

FORECITE Spring 2008 Newsletter

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Spring 2008 FORECITE NEWSLETTER
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Spring 2008 FORECITE Newsletter
Table of Contents

PG I(H)	Precedential Hierarchy: Stare Decisis, Law Of The Case, Etc. [“What Trumps What?”]
PG I(I)	Citation To Case Law
PG V(A)(9.1)	Defendant Need Not Testify To Require Instruction On Defense Theory
PG V(K)	Instruction on Inconsistent Defenses
PG VII(C)(43)	Right To Confrontation: Hearsay Testimony—Crawford Update
PG X(G)(7)	Counsel’s Argument As To Legal Meaning Of Instruction Is Crucial When Instructions Are Ambiguous Or Insufficient

CALJIC

F 2.02 n6	Mental State And Intent Are Normally Proven By Circumstantial Evidence
F 2.20l	Jury Must Only Consider Testimony Based On The Personal Knowledge Of A Witness
F 2.20m	Witness Credibility: Witness Capacity To Perceive And Recollect As Preliminary Finding Of Fact
F 2.20 n16	Witness Credibility: Prior Felony Conviction.
F 2.23b	Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
F 2.23 n1	Defendant’s Testimony: Impeachment By Prior Conviction — Ineffective Counsel For Failure To Request
F 2.23 n2	Witness Credibility: Jury Consideration Of The Fact Defendant Attended The Trial
F 2.23 n3	Cautionary Instruction Regarding Impeachment By Prior Felony Conviction Not Required Sua Sponte.
F 2.23 n4	Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior
F 2.70g	Inculpatory Statement Of One Defendant In Multi-Defendant Trial
F 4.006a	Equitable Estoppel/Entrapment by Estoppel
DP II	Checklist of Selected 6th/8th/14th Amendment Principles
F 12.06 n6	Momentary Possession Defense: Not Applicable To Prison Inmates (PC 4502)
F 12.24.1a	Medical Necessity Defense: Defendant Need Only Leave the Jury With A Reasonable Doubt (HS 11357, HS 11358, HS 11359)
F 12.24.1c	Medical Marijuana: Prosecution Must Prove That The Transportation Was Not Reasonably Related To The Patient’s Medical Needs
F 12.24.1e	Medical Marijuana Defense: Defendant Need Not Be "Seriously Ill"
F 14.50b	Burglary: Defense Of Consent (PC 454).
F 17.40 n7	Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct.
LIO I(E)(2)	Whether Enhancement Allegations May Be Considered In Determining Lesser Included Offenses For Purposes Of Double Jeopardy.
LIO I(G)	Specific Developments. RESEARCH NOTES: Cases
LIO III(A)	Whether An Attempt Is Always A Lesser Included Of The Completed Offense. RESEARCH NOTES: Cases
LIO V(G)	Dismissal Of Greater Offense On Appeal Allows Reinstatement Of Dismissed Lesser Included Offense.
LIO VI (LIO CHK)	LESSER INCLUDED CHECKLIST
LRO II	Theories For Instruction On Lesser Related Offenses Notwithstanding Birks

CALCRIM

F 100.7 Inst 2 (a-d)	Juror Duties: Individual Consideration
F 105 Note 15	Witness Credibility: Jury Consideration Of The Fact Defendant Attended The Trial
F 204 Note 1	Duty Of Trial Judge To Determine Necessity For Physical Restraints
F 316(¶ A) Inst 4	Defendant’s Testimony: Impeachment By Prior Conviction
F 316(¶ A) Inst 5	Credibility of Witness: Applicability To Out-Of-Court Statements
F 316(¶ A) Inst 6	Impeachment Of Defendant By Prior Conviction: Explanatory Instruction Regarding Defendant’s Failure To Reveal The Conviction On Direct Examination
F 316(¶ A) NOTES	NOTES
F 316(¶ A) Note 1	Defendant’s Testimony: Impeachment By Prior Conviction — Ineffective Counsel For Failure To Request
F 316(¶ A) Note 2	Cautionary Instruction Regarding Impeachment By Prior Felony Conviction Not Required Sua Sponte
F 316(¶ A) Note 3	Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior.
F 316(¶ A) Note 4	Applicability To Prosecution Witness
F 316(¶ A) Note 5	Moral Turpitude Finding Must Be Made By Judge
F 316(¶ A) Note 6	Prejudicial Impact Of Prior Conviction Used To Impeach Defendant’s Testimony
F 316(¶ B) Inst 1	Prior Criminal Conduct Amounting To Misdemeanor: Preliminary Fact Determination
F 316(& B) Inst 4	Instruction Should Be Limited To Misdemeanor Conduct
F 320 Note 4	Available Sanction Short Of Striking Testimony
F 358 Inst 7	Inculpatory Statement Of One Defendant In Multi-Defendant Trial
F 358 Note 14	Applicability Of Aranda/Bruton To Declarations Against Penal Interest
F 362.1 Inst 2 (a & b)	False Statements: Falsehood—Requisite Preliminary Facts
F 416.3 Inst 4	Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does "Not Have To Prove"
F 505 Note 11	Prisoner’s Right To Self Defense
F 600.5 Inst 2 (a & b)	Attempted Murder: Modification Of "Killing Zone" Instruction
F 3305 Inst 2	Equitable Estoppel/Entrapment By Estoppel/Public Authority/Government Authorization
F 3305 Note 2	Good Faith Reliance On Advice Of Attorney
F 3310	COMMISSION OF UNCHARGED NON-INCLUDED OFFENSE
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
F 3311	RELIANCE ON ADVICE OF COUNSEL
F 3311 Inst 1	Reliance On The Advice Of Counsel May Negate Specific Intent
F 3311 Note 1	Good Faith Reliance On Advice Of Attorney
F 3450	INSANITY: DETERMINATION, EFFECT OF VERDICT (PC 25, 25.5)
F 3470 Note 9	Prisoner’s Right To Self Defense
F 3471 Inst 5	Mutual Combat Requires "Prearrangement" or "Agreement to Fight"
F 3550 Inst 2	Individual Juror May Communicate With Judge
F 3550 Inst 4	Duty to Deliberate
F 3550 Inst 5	Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
F 3550 Inst 6	Duty To Deliberate: Juror May Think About The Case And Make Notes While Deliberations Are In Recess
F 3550 Note 3	Individual Opinion Required: Duty To Deliberate – Informing Jury As To Possibility Of A Hung Jury
F 3550 Note 4	Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case
F 3550 Note 5	Dismissal Of Juror For Failure To Deliberate
F 3550 Note 6	Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room
F 3550 Note 7	Improper To Refer To The Prosecution as "The People"
F 3550 Note 8	Discharge Of Juror: Applicability Of Double Jeopardy
F 3550 Note 9	Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct

ANNOTATED LIST OF CALCRIM INSTRUCTIONS
DISCUSSED IN THE CASE LAW

Over 40 new annotations (over 100 annotations total) on over 60 total CALCRIM instructions

NEW BRIEF IN CALCRIM BRIEF BANK

CALCRIM Brief Bank # CCB-002 [Re: CC 1603 Robbery – “Place of Temporary Safety”]

RECENT CASE LAW UPDATE

February 2008 CALIFORNIA CASE LAW UPDATE –	Selected California Cases: California Supreme Court (February 1 – February 29, 2008) California Courts of Appeal (February 1 – February 29, 2008)
January 2008 CALIFORNIA CASE LAW UPDATE –	Selected California Cases: California Supreme Court (January 1 – January 31, 2008) California Courts of Appeal (January 1 – January 31, 2008) Ninth Circuit Court of Appeal (January 1 – January 31, 2008)
HELPFUL NON-CALIFORNIA CASES: SELECTED CASES FROM FEDERAL AND OUT-OF-STATE JURISDICTIONS –	Federal Courts (January-February 2008) California Courts of Appeal Supreme Court of Florida Wisconsin Court of Appeals

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