Tag Archives: Intoxication


Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
March 21st, 2023

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice.   These defects in the CALCRIM instructions […]


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Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
February 27th, 2023

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice.   These defects in the CALCRIM instructions […]


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Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
January 24th, 2023

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice. These defects in the CALCRIM instructions were […]


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Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
November 30th, 2022

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s “own mens rea.” (People v. McCoy (2001) 25 Cal.4th 1111, 1122; see also People v. Powell (2021) 63 Cal.App.5th 689, 712-13.) The aider and abettor’s mens rea includes several subjective mental elements as observed by People […]


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Felony Murder Special Circumstances: Tison Factors — Jury Should Not Give Undue Weight to Factors Specifically Included CC 703
May 18th, 2021

In reliance on Banks and Clark, CC 703 identifies a number of specific factors for the jurors “may consider” in deciding the “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 tells the jurors:   …Among the factors you may consider are: Did the [sic] […]


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Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence
May 4th, 2021

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 includes […]


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Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors
April 13th, 2021

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.   Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with […]


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Felony Murder Special Circumstance: Any One Tison Factor May, by Itself, Leave the Jurors with A Reasonable Doubt
December 23rd, 2020

CC 703 includes the following caveat regarding the specific factors listed for the jury’s consideration as to the reckless indifference and major participant allegations:   No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant [acted with reckless indifference to human life] [was a […]


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Felony Murder Special Circumstance: Reckless Indifference — Consciousness of Guilt Not Alone Sufficient to Prove Guilt or Supply Missing Elements
December 18th, 2020

CC 703 invites the jurors to consider the defendant’s actions after the crime in determining the “reckless indifference” by telling the jurors that they may consider the following specific factor: “Did the defendant have an opportunity … to help the victim(s)?” However, the defendant’s post-crime actions are not alone sufficient to prove reckless indifference. “…[A] […]


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Is Larcenous Intent an Element of Robbery?
September 12th, 2016

For decades CALJIC 9.40 has relied on the literal language of PC 211 to define the specific intent required for robbery as an intent to permanently deprive the possessor of the property that is taken. However, this definition is erroneous because robbery requires an intent to steal which is defined as an intent to permanently […]


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