SERIES 300 EVIDENCE
F 376 Possession Of Recently Stolen Property As Evidence Of A Crime
TABLE OF CONTENTS
F 376 Inst 1 Circumstances Of Possession Do Not Necessarily “Tend To Prove Guilt”
F 376 Inst 2 (a & b) Possession Of Property: Impermissible To Infer Robbery Rather Than Theft
F 376 Inst 3 (a-c) Possession Of Recently Stolen Property Must Be “Unexplained”
F 376 Inst 4 (a & b) Prosecution Must Prove That Property Was Stolen And In Possession Of Defendant
F 376 Inst 5 Lack Of Possession As Evidence To Negate Guilt
F 376 Inst 6 Knowing Possession: Consideration Of Intoxication And/Or Mental Impairment
F 376 Inst 7 Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary
F 376 Inst 8 (a-g) Possession Of Recently Stolen Property: “Recently” Is A Relative Term
F 376 Inst 9 (a-c) Possession Of Recently Stolen Property: Interplay Between Recently And Corroboration Requirement
F 376 Inst 10 Recently Stolen Property: When Both Theft and Non-Theft Offenses Are Charged
F 376 Inst 11 Possession Of Property: Improper Pinpoint Instruction
F 376 Inst 12 (a & b) Recent Possession As A Preliminary Fact To Be Proved By The Prosecution
F 376 Inst 13 Federal Constitutional Challenge To CJ 2.15 (Now CC 376)
F 376 Inst 14 Objection By Defendant Precludes Instruction Which Benefits Defendant
F 376 Inst 15 Improper To Define Burden Of Proof In Terms Of Being Convinced Or Satisfied
Return to Series 300 Table of Contents.
F 376 Inst 1 Circumstances Of Possession Do Not Necessarily “Tend To Prove Guilt“
*Modify CC 376, paragraph 2, sentence 2 as follows [deleted language is stricken]:
You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt of __________ <insert crime>.
Points and Authorities
By referring to “circumstances tending to prove guilt,“ CALCRIM 376 is erroneous on two grounds:
1) It implies that the possession of the property does in fact “tend to prove guilt“ (see FORECITE PG X(D)(5); see also FORECITE F 100.1 Inst 5), and,
2) It fails to recognize that the circumstances of the possession may also be the basis for a not guilty finding. (See e.g., FORECITE F 376 Inst 4 and F 376 Inst 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 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 376 Inst 2 (a & b) Possession Of Property: Impermissible To Infer Robbery Rather Than Theft
*To be added at end of CC 376:
Alternative a:
If you decide that the defendant knowingly possessed stolen property, you many not rely on that fact in deciding whether any crime the defendant committed was robbery as opposed to theft.
Alternative b:
You may not infer from the defendant’s conscious possession of the stolen property that any illegal acquisition of the property was affected through robbery rather than theft.
Points and Authorities
CALCRIM 376 is misleading when the defendant is charged with both theft and robbery, or where theft may be considered a lesser included offense of robbery. For example, if the instruction refers only to the robbery, it could erroneously imply that possession of the stolen property raised an inference that the defendant was guilty of robbery rather than theft.
In People v. Lang (1989) 49 C3d 991, 1024, the Supreme Court addressed this issue but found no error because there was no request for clarifying or amplifying language and because the defendant would have been more likely to make false statements about the more serious offense of robbery rather than theft. (Id. at 1024-25; but see dissent at 1058.)
However, in a case where the jury is asked to infer guilt from the fact of possession of the stolen property, there is no basis to infer that the property was a product of a robbery rather than a theft. Accordingly, upon request, CC 375 should be modified or supplemented to assure that the jury is not led to believe that possession of the stolen property is more indicative of a robbery than a theft.
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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 2.15a.
F 376 Inst 3 (a-c) Possession Of Recently Stolen Property Must Be “Unexplained“
*Add to CC 376:
Alternative a [Reasonable doubt]:
However, no inference of guilt may be made from the defendant’s knowing possession of recently stolen property when such possession was satisfactorily explained. If you have a reasonable doubt as to whether or not the possession was satisfactorily explained, you may not infer guilt based solely upon the defendant’s possession of the property and the existence of slight corroboration. Rather, guilt must be proved beyond a reasonable doubt by evidence other than the defendant’s possession of the property.
Alternative b [Reasonable doubt]:
However, no inference of guilt may be made from the defendant’s knowing possession of recently stolen property when such possession was satisfactorily explained. To be satisfactory, the explanation need only leave you with a reasonable doubt as to whether or not the defendant came into possession of the property by criminal means. If you have such a reasonable doubt as to whether or not the possession was satisfactorily explained, you may not infer guilt based solely upon the defendant’s possession of the property and the existence of slight corroboration.
Alternative c [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution contends that you should consider the defendant’s alleged possession of _______________ <specify property>.
However, you must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the defendant did not satisfactorily explain (his/her) [alleged] possession of the _______________ <specify property>.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, [any evidence of______________________].
If you [all] find the above preliminary fact to exist, then you [may] [must] consider [any evidence of _________________] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that the defendant did not satisfactorily explain (his/her) [alleged] possession of the _______________ <specify property>.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Unexplained Possession As A Preliminary Fact.—CALCRIM 376 misstates the common law permissive inference of guilt of theft from possession of recently stolen property by removing the requirement that such possession must be unexplained. (See People v. McFarland (1962) 58 C2d 748, 755; Barnes v. U.S. (1973) 412 US 837, 845 [37 LEd2d 380; 93 SCt 2357].) However, it is well established that the rule in California is: “… [p]ossession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. This rule is applied where the accused is found in possession of the articles soon after they were stolen.“ (People v. McFarland, supra, at 754, emphasis supplied, citing People v. Lyons (1958) 50 C2d 245, 258.)
Moreover, removal of the explanation factor, coupled with the failure to inform the jury that the inference does not apply unless the prosecution proves the lack of a satisfactory explanation beyond a reasonable doubt, unconstitutionally shifts the burden of proof to the defendant in violation the Due Process clause of the 14th amendment. (See People v. Mayberry (1975) 15 C3d 143, 157 [error not to give requested instruction that defendant only required to leave the jury with a reasonable doubt as to whether he had bona fide belief in consent to sexual intercourse]; see also People v. Hardy (1948) 33 C2d 52, 64-65 [defendant need only go forward with evidence sufficient to raise a doubt].) For example, the current CC 376 allows the jury to completely ignore any explanation for the possession—no matter how plausible or compelling—and convict the defendant based solely upon his or her “conscious possession” of the property and “slight corroborating evidence.” Such a result would violate settled constitutional issues on two scores. First, by making possession and slight corroboration a “sole and sufficient basis for finding guilt“ even if the possession was satisfactorily explained, the instruction offers an improper shortcut to conviction by failing to tell the jury that it could be dispelled by other evidence adduced in the case. (See County Court of Ulster County v. Allen (1979) 442 US 140, 187 [60 LEd2d 777; 99 SCt 2213] [“As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the [‘more likely than not’ ] test described in Leary.“ ].) Second, conscious possession which is satisfactorily explained does not provide a rational basis for concluding that the defendant “more likely than not committed the crime.“ “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [fn omitted].“ (Leary v. U.S. (1969) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532]; see also, County Court of Ulster County at 165-66 and Hanna v. Riveland (9th Cir. 1996) 87 F3d 1034.) In sum, the judicially-created presumption embodied in CJ 2.15 (which should be subjected to no less scrutiny than a statutory presumption (see U.S. v. Gainey (1965) 380 US 63, 66-67 [13 LEd2d 658; 85 SCt 754]) is unconstitutional without supplementation such as set forth above which informs the jury that guilt cannot be founded upon the inference alone, unless it has been proven beyond a reasonable doubt that there was no satisfactory explanation for the possession.
Approval of CJ 2.15 in People v. Anderson (1989) 210 CA3d 414, 425-32, does not preclude the above modification of CC 376 because those cases and People v. Holt (1997) 15 C4th 619, 676-77, did not consider the question of whether the possession must be unexplained. (See People v. Dillon (1983) 34 C3d 441, 473-74; People v. Superior Court (Marks) (1991) 1 C4th 56, 65-66; Santa Clara County Local Transportation Authority v. Guardino (1995) 11 C4th 220, 243 [cases are not authority for matters not considered].) Second, Anderson fails to recognize, as explained above, that even a permissive inference can be constitutionally infirm if it permits the jury to use an evidentiary shortcut to conviction which does not require the prosecution to prove beyond a reasonable doubt the existence of those facts which are necessary to rationally connect the inference with the defendant’s guilt—i.e., that the possession was not satisfactorily explained. Third, Anderson characterizes “guilty knowledge“ as the inference (Anderson, at 431) whereas CC 376 permits an inference of guilt. [See Brief Bank # B-705for additional briefing on this issue.]
Propriety Of Preliminary Fact Instruction.C See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must“ Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.15b.
F 376 Inst 4 (a & b) Prosecution Must Prove That Property Was Stolen And In Possession Of Defendant
*Add at the end of CC 376 add:
Alternative a:
[Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding the defendant’s [alleged] possession of _______________ <specify property>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
1. That the _______________ <specify property> was recently stolen; AND
2. That the defendant [consciously] [knowingly] possessed it.
[Insert other material preliminary fact.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist you must disregard, for all purposes, any evidence that the defendant possessed the _______________ <specify property>.
If you [all] find the above preliminary fact to exist then you [may] [must] consider any evidence that the defendant possessed the _______________ <specify property> in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that (1) that the _______________ <specify property> was recently stolen; AND (2) that the defendant [consciously] [knowingly] possessed it.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [No specification of burden]:
You may not consider defendant’s alleged possession of the property for any purpose unless you find beyond a reasonable doubt that:
1. The property was recently stolen, and
2. The defendant consciously possessed the property.
If you have a reasonable doubt as to either of these requirements, you must give the defendant the benefit of the doubt and not consider, for any purpose, defendant’s alleged possession of the property.
Points and Authorities
Property Must Be Stolen And In Defendant’s Possession.—The federal constitutional rights to trial by jury and due process (6th and 14th Amendments) require the prosecution to prove every essential element of the offense beyond a reasonable doubt. Thus, when the jury is required to draw an essential inference from circumstantial evidence, it must find beyond a reasonable doubt that the facts upon which the inference is predicated have been proven. (See People v. Carter (1957) 48 C2d 737, 758-61; see also People v. Watson (1956) 46 C2d 818, 831; People v. Gonzales (1990) 218 CA3d 403, 414; see also CC 224.) Accordingly, before the jury may rely upon the defendant’s possession of stolen property to infer that the defendant took the property, the jury must determine beyond a reasonable doubt that the defendant was in possession of the property and that the property was stolen. (See People v. Morris (1988) 46 C3d 1, 40-41 [error to give unqualified instruction on the effect of recent possession of stolen property when the evidence was conflicting or unclear that the defendant was either in possession of stolen property or that the property possessed was in fact stolen]; see also FORECITE F 376 Inst 12; but see People v. Williams (2000) 79 CA4th 1157, 1171-74 [jury could be instructed with current version of CALJIC 2.15 even when evidence relating to possession of recently stolen property is conflicting, as current version of instruction does not mislead the jury into thinking that the fact of possession has already been determined, distinguishing People v. Morris.) Hence, the above instruction is necessary to assure that the jury understands this requirement. (Even in cases where CC 224 is also given, the above instruction is necessary if the defendant’s possession of the stolen property is a theory of the defense which the defense wishes to pinpoint.) (See generally, FORECITE PG III(A).)
Propriety Of Preliminary Fact Instruction.C See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors AMust“ Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.7 [Preliminary Facts]
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.15c.
F 376 Inst 5 Lack Of Possession As Evidence To Negate Guilt
*Add to CC 376:
Where the crime is of a type in which physical evidence is normally possessed by those who commit it, the fact that the defendant did not possess such evidence may be considered in determining whether [he] [she] is guilty.
Points and Authorities
Right To Defense Theory Instruction Generally.—See FORECITE 315.1.2 Inst 2.
Relevance Of Absence Of Possession.—Where a crime is of a type in which physical evidence is normally possessed by those who commit it, a search which fails to uncover such evidence may be considered in determining whether the person searched is guilty of the offense. (See U.S. v. Van Fossen (4th Cir. 1972) 460 F2d 38, 41.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
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 2.15d.
F 376 Inst 6 Knowing Possession: Consideration Of Intoxication And/Or Mental Impairment
*Add to CC 376 when appropriate:
Knowing possession within the meaning of this instruction requires the following:
1. The defendant had either actual or constructive possession of stolen property;
2. The defendant had actual knowledge of [his] [her] possession of the property; and
3. The defendant had actual knowledge that the property was stolen.
In determining whether these elements were satisfied, you should consider any physical or mental impairments which may have been affecting the defendant, including intoxication; impairment of mental faculties through mental disease, defect or disorder; impairment of physical faculties and/or physical trauma.
Points and Authorities
Knowledge Element Of Possession May Be Negated By Intoxication/Mental Impairment.—Possession requires both knowledge of the nature of the item possessed and knowledge that the item is possessed. (See People v. Brooks (1965) 234 CA2d 662, 670; see also, People v. Collin (1965) 232 CA2d 681, 684.) Although these cases involve “conscious possession“ of narcotics, the same elements should apply to “conscious possession“ of stolen property. (See e.g., Rollins v. Superior Court (1963) 223 CA2d 219, 222 [no conscious possession where defendant did not know he possessed the property].)
Accordingly, since the possession must be knowing, any factors, such as intoxication, which could impair the defendant’s perception, should be considered by the jury. (See People v. Bryson (1967) 257 CA2d 201, 210 [no showing of “conscious possession“ of stolen property due to intoxication]; see also FORECITE F 3426 Inst 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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
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 2.15e.
F 376 Inst 7 Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary
*Add to CC 376 after paragraph 1, sentence 1:
You may not convict the defendant of [theft] [burglary] [_____] unless there is additional evidence above and beyond the defendant’s possession of the stolen property which, when considered with all the other evidence, convinces you beyond a reasonable doubt that the defendant is guilty of [theft] [burglary] [_____].
Points and Authorities
Not Alone Sufficient To Convict.—People v. Harris (1958) 163 CA2d 470, 473-4; see also People v. Citrino (1956) 46 C2d 284, 288; In re G. (1981) 120 CA3d 218, 227; People v. Clark (1953) 122 CA2d 342, 346 [unexplained possession alone is insufficient to support a conviction for burglary].)
See also FORECITE F 370 Inst 8
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
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 2.15f.
F 376 Inst 8 (a-g) Possession Of Recently Stolen Property: “Recently“ Is A Relative Term
*Add to CC 376:
Alternative a:
The term ‘recently’ is a relative term that has no fixed meaning. The longer the period of time since the property was stolen, the more doubtful the inference of knowledge becomes.
[Source: 7th Circuit Federal Jury Instructions—Criminal 3.14 [Possession Of Stolen Property- Inference] & & 2 (1999).]
Alternative b:
The term ‘recently’ is a relative term. Whether property may be considered as recently stolen depends upon the nature of the property, and all of the facts and circumstances of the case.
[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Alexander, Maine Jury Instructions Manual 6-44 [Instruction 45-Exclusive Possession Inference: Burglary-Theft] (Lexis, 1999).]
Alternative c:
The term ‘recently’ is a relative term that has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The shorter the period between the theft and the possession, the stronger the inference becomes. Conversely, the longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from the unexplained possession.
[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also New Jersey Model Jury Charges—Criminal Chap. 20 [Offenses Against Property: Supplemental Charge on Theft] 5/28/80 & & 5 (New Jersey ICLE 4th ed. 1997).]
Alternative d:
The term ‘recently’ is a relative term, and has no fixed meaning. Whether property may be considered as recently-stolen depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft, the more doubtful becomes the inference which may be drawn from unexplained possession.
[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Thomas v. State (TE 1971) 463 SW2d 687, 688; Tennessee Pattern Instructions—Criminal, T.P.I.-Crim 42.20 [Inference From Possession Of Stolen Property] (West, 4th ed. 2000).]
Alternative e:
The term ‘recently’ is a relative term. The longer the period of time since the theft, the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Virginia Model Jury Instructions—Criminal 36.300, comment [Larceny-Possession Interferences] & & 2 (Lexis, 2000).]
Alternative f:
The word ‘recently’ does not mean a set time, but it is an important word. The longer the time between the theft and the evidence of possession, the more doubtful it is that possessing the property shows that the defendant [knew it was stolen] [was the person who stole it].
[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Criminal Jury Instructions for the District of Columbia 3.06, [Inference From the Possession Of Recently Stolen Property] para. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]
Alternative g:
The word “recently,“ as used in these instructions, is a relative term, and it has no fixed meaning. Whether property may be considered as recently stolen depends upon all the facts and circumstances shown by the evidence. The longer the period of time since the theft of the property, the more doubtful becomes the inference which may reasonably be drawn from its unexplained or unsatisfactorily explained possession.
[Source: Pendergrast v. United States (DC Cir.1969) 416 F2d 776, 790-91.]
Points and Authorities
“Recently“ Is A Relative Term—An important component of the inference that a person in possession of stolen property was that the property was “recently“ stolen. (People v. Anderson (1989) 210 CA3d 414, 421.) For example, a common inference that is suggested to contradict the inference that the defendant was the thief is that the property was innocently obtained from another. The reasonableness of such a contrary inference would depend upon the nature of the property—i.e., how quickly and easily it could be sold—and other circumstances bearing on whether the theft of the property was so recent that the defendant could not have innocently obtained it from the actual thief. Accordingly, it may be appropriate to instruct the jury on this point.
In other words, the term “ecently“ is “a relative term, depending very substantially upon the circumstances of the particular case for its meaning.“ (U.S. v. Wolfenbarger (6th Cir.1970) 426 F2d 992, 995.) “No definite time can be fixed as to when, as a matter of law, possession is or is not recent.“ (Virginia Model Jury Instructions—Criminal 36.300, comment [Larceny-Possession Interferences] (Lexis, 2000); see also Wilborne v. Commonwealth (VA 1943) 28 SE2d 1; U.S. v. Johnson (6th Cir. 1984) 741 F2d 854, 857.)
One important factor in determining the meaning of “recently“ is the type of goods possessed. If the goods are unique and hard to dispose of, “recently“ can mean a longer period of time than if the goods are ordinarily and easily sold. (United States v. Gordo (5th Cir. 1970) 421 F2d 1068, 1073; United States v. Baxa (7th Cir. 1965) 340 F2d 259, 261.) Another major factor is the interval between the theft and the defendant’s possession. The longer the period of time between the theft and the proof of possession, the weaker the inference. (People v. Anderson, 210 CA3d at 421; see also United States v. Coggins (DC Cir. 1970) 433 F2d 1357, 1362; United States v. Wolfenbarger, 426 F2d at 995; Pendergrast v. United States (DC Cir.1969) 416 F2d 776, 790.)
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
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 2.15g.
F 376 Inst 9 (a-c) Possession Of Recently Stolen Property: Interplay Between Recently And Corroboration Requirement
*Add at end of CC 376, paragraph 2:
Alternative a:
As the length of time since the theft increases, any inference of guilt becomes more doubtful and the amount of corroboration required increases.
Alternative b:
Also, consider the fact that the term “recently“ is a relative term that has no fixed meaning. The longer the period of time since the property was stolen, the more doubtful the inference of knowledge becomes, and the greater the corroboration required.
[Cf. 7th Circuit Federal Jury Instructions—Criminal 3.14 [Possession Of Stolen Property—Inference] & 2 (1999).]
Alternative c:
The term “recently“ is a relative term that has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The shorter the period between the theft and the possession, the stronger the inference becomes. Conversely, the longer the period of time since the theft, the more doubtful becomes the inference which may reasonably be drawn from the unexplained possession. Hence, when the period is short, only slight corroboration is required but if the period is longer, stronger corroboration is required.
[Cf. Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also New Jersey Model Jury Charges – Criminal Chap. 20 [Offenses Against Property: Supplemental Charge On Theft] 5/28/80 & (New Jersey ICLE 4th ed. 1997).]
Points and Authorities
Amount Of Corroboration Should Depend On How Recently The Property Was Stolen—People v. Anderson (1989) 210 CA3d 414, 421 makes the point that finding a defendant in possession of recently stolen property is so incriminating that only slight corroborating evidence is needed to permit a determination of guilt. (Anderson, supra, 210 CA3d at p. 421.) But this reasoning only has force if the term “recently stolen property“ truly means “recently.“ As the time between the theft and the discovery of the property in the defendant’s possession lengthens, the incriminating inference lessens, and thus the strength of the necessary corroborating evidence should become greater. Clearly, where a person is found in possession of the property minutes after the theft, a lesser showing of corroborating evidence is needed to prove guilt than if the interval is two months. [See Brief Bank # B-951for briefing on this issue.]
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
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 2.15h.
F 376 Inst 10 Recently Stolen Property: When Both Theft and Nontheft Offenses Are Charged
*Add at beginning of CC 376:
The following instruction applies only to Count[s]: _______ <insert theft-related counts>.
Points and Authorities
It is well settled that CJ 2.15 (now CC 376) should not be made applicable to nontheft offenses. (See FORECITE F 376 Note 9; see also FORECITE F 375 Inst 5.) Accordingly, when both theft and nontheft offenses are charged, CJ 2.15 should be modified to assure that it is not applied to the nontheft charge(s). (See People v. Harden (2003) 110 CA4th 848, 856.)
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]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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 2.15i.
F 376 Inst 11 Possession Of Property: Improper Pinpoint Instruction
*Modify CC 376 as follows:
[Delete CALCRIM 376.]
Points and Authorities
CALCRIM 376 improperly pinpoints the prosecution’s evidence. Therefore, the defense should be able to argue that against giving it to the jury on the same basis that defense instructions are routinely rejected. (See FORECITE F 362 Note 6.)
People v. Harden (2003) 110 CA4th 848, 857 upheld the instruction on the basis that CJ 2.15, if properly worded “would inure to the defendant’s benefit because it would warn the jury not to infer the existence of the element of robbery or burglary of a special circumstance allegation from the defendant’s conscious possession of recently stolen property, without corroborating evidence.” (See also People v. Snyder (2003) 112 CA4th 1200 [CJ 2.15 (now CC 376) is designed “partly as a prophylactic in favor of the accused,” since it admonishes the jury of “the well-established principle that evidence of possession of recently stolen property, standing alone, will not support a conviction for a theft crime” ].)
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]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[RESEARCH NOTE: See FORECITE BIBLIO 2.15.]
CALJIC NOTE: See FORECITE F 2.15 n1.
F 376 Inst 12 (a & b) Recent Possession As A Preliminary Fact To Be Proved By The Prosecution
*Replace or add to CC 376:
Alternative a [Preliminary Fact: CALCRIM 375 & 1400Format—Not alone sufficient to convict; CC 376 essential fact must be proven beyond a reasonable doubt]:
The prosecution contends that the defendant was in possession of property that had in fact been recently stolen.
You must not consider such evidence for any purpose unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the property was recently stolen.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged possession of the property, for all purposes] [not consider the defendant’s alleged possession of the property against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the defendant’s alleged possession of the property [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [No burden]:
[See FORECITE F 376 Inst 4, Alternative b.]
Points and Authorities
Recently Stolen Property As A Preliminary Fact.—In People v. Anderson (1989) 210 CA3d 414, 422, the court concluded that “it is for the jury to conclude what time period qualifies as ‘recent.’ ”
Propriety Of Preliminary Fact Instruction.C See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict. — See FORECITE F 370 Inst 8
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.7 [Preliminary Facts]
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
See also FORECITE F 376 Inst 4.
[RESEARCH NOTE: See FORECITE BIBLIO 2.15.]
CALJIC NOTE: See FORECITE F 2.15 n3.
F 376 Inst 13 Federal Constitutional Challenge To CJ 2.15 (Now CC 376)
*Modify CC 376 as follows:
[Delete CALCRIM 376.]
Points and Authorities
In People v. Gamble (1994) 22 CA4th 446, 453 and People v. Anderson (1989) 210 CA3d 414, 420-32, the court rejected the defendant’s argument that CJ 2.15 should not be given in a robbery case because it only shows the defendant’s “knowledge of the tainted nature of the property” and because it violates due process by lessening the prosecution’s burden of proof. (See also People v. Esquivel (1994) 28 CA4th 1386, 1400-01 [no rational basis argument rejected under the facts presented].) However, there are several issues which these Court of Appeal opinions did not address regarding these arguments.
a. Inference Of Theft As To Opposed To Robbery.—As to the propriety of CJ 2.15 in a robbery case, the Gamble court of Appeal correctly observed that as to theft crimes, CJ 2.15 “by its very language permits the jury in a proper case to infer the identity of defendant as the one who committed the crime.” (Gamble, 22 CA4th at 453.) However, in a case where the nature of the crime is at issue (e.g. whether it is a theft or a robbery), the language of CJ 2.15, unless modified per FORECITE F 2.15a, improperly allows the jury to utilize the defendant’s possession of the stolen property to resolve the factual question of whether the crime was a theft or a robbery. The defendant’s possession of the property is no more probative of a robbery than a theft. (See e.g. FORECITE F 2.06a: consciousness of guilt evidence not relevant to the degree or nature of the crime.)
b. Possession Of Property: “Slight Corroboration” Requirement Violates Due Process.—Neither Gamble nor Anderson addressed the question of whether the slight corroboration requirement violates due process. Moreover, unless CJ 2.01 is also given, CJ 2.15 violates due process by allowing the jury to rely on an essential inference which has not itself been proven beyond a reasonable doubt. (See People v. Gonzales (1990) 218 CA3d 403, 414; see also FORECITE PG VII(C).)
In material part, CC 376 allows a jury to convict the defendant of theft when his possession of stolen property is combined with “slight” corroborating evidence of his participation in the theft. Use of the term “slight” renders the instruction constitutionally defective.
United States v. Gray (5th Cir. 1980) 626 F2d 494 establishes this conclusion. In Gray, the trial court first instructed the jury that “‘slight evidence'” of a defendant’s participation in a conspiracy would suffice for conviction. (Id., at p. 500.) After a defense objection to this instruction, the court then instructed the jury that “‘as to that slight or little evidence, you must be convinced, beyond a reasonable doubt, that he participated.’ ” (Ibid.) In holding the foregoing instructions to be unconstitutional, the Court of Appeals reasoned that “[t]he ‘slight evidence’ reference can only be seen as suffocating the ‘reasonable doubt’ reference.” (Ibid.)
The identical analysis applies to CC 376. By using the term “slight,” the instruction manifestly tells the jury that guilt may be inferred on the basis of evidence which does not rise to the standard of proof beyond a reasonable doubt. Thus, per se reversal is required whenever the instruction is used. (Sullivan v. Louisiana (1993) 508 US 275, 279-281 [124 LEd2d 182; 113 SCt 2078] [an instructional error which misadvises the jury regarding the reasonable doubt standard compels reversal per se].)
[See Brief Bank # B-950for additional briefing on this issue.]
c. Improper Presumption Based On Insufficient Foundational Facts—People v. Holt (1997) 15 C4th 619, 676-77 concluded that CJ 2.15 (now CC 376) is not constitutionally invalid by permitting an inference or presumption based on insufficient foundational facts. (See also People v. Johnson (1993) 6 C4th 1, 36-38.)
NOTE: The federal issues specifically rejected by Gamble, Anderson, and Holt should be preserved in state court for review on habeas corpus.
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[RESEARCH NOTE: See FORECITE BIBLIO 2.15.]
CALJIC NOTE: See FORECITE F 2.15 n5.
F 376 Inst 14Possession Of Recently Stolen Property: Defense Objection Precludes Cautionary/Limiting Instruction Which Benefits Defendant
[Do not give CALCRIM 376 over defense objection or in absence of defense request.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
CC 376 Is A Cautionary/Limiting Instruction Which Should Not Be Given In The Absence Of A Defense Request – CC 376 is akin to a cautionary or limiting instruction which “protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.” (People v. Holt (1997) 15 C4th 619, 677; see also People v. Najera (2008) 43 C4th 1132, 1138-39 [CJ 2.15 on possession of stolen property not required sua sponte].)
Accordingly, since the instruction, as interpreted by the California Supreme Court, benefits the defendant, the defense should have the option of waiving this benefit and precluding instruction on CC 376. A criminal defendant may waive rights that exist for his or her own benefit. (See Cowan v. Superior Court (1996) 14 C4th 367, 371; see also People v. Mendoza (2000) 24 C4th 130, 176 [CJ 2.15 is, in general, favorable to defendant]; People v. Yeoman (2003) 31 C4th 93, 131 [CJ 2.15 benefits the defense by informing the jury that conscious possession of recently stolen property is insufficient, without corroboration, to sustain a conviction].) “Permitting waiver … is consistent with the solicitude shown by modern jurisprudence to the defendant’s prerogative to waive the most crucial of rights.” (People v. Robertson (1989) 48 C3d 18, 61; see also Cowan, supra, 14 C3d 371.) When the defendant specifically objects to the instruction it should not be given since the instruction is for the defendant’s benefit. (See also FORECITE F 362.1 Inst 9.) The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons.
“A reasonable attorney may … tactically conclude[] that the risk of a limiting instruction … outweigh[s] the questionable benefits such instruction would provide.” (People v. Maury (2003) 30 C4th 342, 394; see also People v. Hernandez (2004) 33 C4th 1040, 1053 [“defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used”]; In re Seaton (2004) 34 C4th 193, 200, n. 3 [trial counsel’s tactical decisions are accorded great deference]; People v. Hawkins (1995) 10 C4th 920, 942.)
Moreover, California Civil Code 3513 provides that anyone “may waive the advantage of a law intended only for his benefit.” (See also FORECITE PG VI(C)(1.1).)
Finally, the Supreme Court in People v. Najera (2008) 43 C4th 1132, 1139 (Najera), held a trial court has no sua sponte duty to give CC 376 because it is merely a more specific applications of general instructions governing circumstantial evidence. (Najera, at p. 1138.) The court’s reasoning in Najera applies equally to similar sorts of instructions including those on consciousness of guilt. The court explained: “Where . . . an instruction simply informs the jury that a fact or cluster of facts is not, without more substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions, we have not imposed a duty on trial courts to provide such an instruction sua sponte. For example, the instructions concerning consciousness of guilt (CALJIC Nos. 2.03, 2.04, 2.05 & 2.06) recite that such evidence is not sufficient by itself to prove guilt, yet we have never held that the trial court has a sua sponte duty to instruct the jury accordingly. (See Judicial Council of Cal., Crim. Jury Instns. (Fall 2007) Bench Notes to CALCRIM No. 371 [‘No authority imposes a duty to give this instruction sua sponte’].) . . . As the Court of Appeal pointed out below, ‘an instruction that tells the jury what kinds of rational inferences may be drawn from the evidence does not provide any insight jurors are not already expected to possess.’ [Citation.] Such instructions, while helpful in various circumstances, are not vital to the jury’s ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.” (Najera, supra, 43 C4th at p. 1139, fn. omitted.)
See also FORECITE F 372.1 Inst 6.
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 2.4 [Instructions Which Improperly Shift Burden Of Proof]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
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 2.15 n9.
F 376 Inst 15 Improper To Define Burden Of Proof In Terms Of Being Convinced Or Satisfied
*Modify CC 376, paragraph 4 as follows [added language is underlined; deleted language is stricken]:
Remember that you may not convict the defendant of any crime unless you are convinced find that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
See FORECITE F 224 Inst 5.
