SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 404 INTOXICATION
TABLE OF CONTENTS
F 404.1 INTOXICATION—TITLE AND IDENTIFICATION OF PARTIES
F 404.1 Inst 1 Intoxication—Title
F 404.1 Inst 2 Identification Of Prosecution And Defendant
F 404.2 INTOXICATION—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 404.2 Inst 1 Improper Shifting Of Burden; Jurors Must Consider Evidence Of Intoxication
F 404.3 INTOXICATION—LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 404.3 Inst 1 Jurors Not Required To Decide
F 404.4 INTOXICATION—BURDEN OF PROOF ISSUES
F 404.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
Return to Series 400 Table of Contents.
F 404.1 Intoxication—Title And Identification Of Parties
F 404.1 Inst 1 Intoxication—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 404.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 404.2 Intoxication—Tailoring To Facts: Persons, Places, Things And Theories
F 404.2 Inst 1 Improper Shifting Of Burden; Jurors Must Consider Evidence Of Intoxication
*Modify CC 404, paragraph 1, sentence 1 as follows [added language is underlined; deleted language is stricken]:
If you conclude Consider any evidence that the defendant was intoxicated at the time of the alleged crime, you may consider this evidence in deciding attempting to decide whether the defendant:
. . .
*Add after Elements:
Alternative a:
If you have a reasonable doubt whether the defendant had the [specific] intent and/or mental state required for ______________ <insert crime[s]> you must find him/her not guilty of (that crime/those crimes).
Alternative b:
Any juror who has a reasonable doubt whether the defendant had the specific intent and/or mental state required for ______________ <insert crime[s]> must vote [to acquit] [not guilty as to (that crime/those crimes)].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Deletion Of Burden Shifting Language – The phrase “If you conclude . . .” improperly implies that the defendant has a burden to produce evidence sufficient to establish his or her intoxication. Thus, the instruction fails to assure the jurors will understand that except for affirmative defenses (see, e.g., People v. Lam (2004) 122 CA4th 1297, 1301) and preliminary facts (see EC 403) the defendant has no burden to present evidence or prove anything at trial. (See In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; People v. Hill (1998) 17 C4th 800, 831; People v. Woods (2006) 146 CA4th 106, 112-13; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127.) The jurors should never be instructed on the defendant’s burden of “going forward” with evidence since this is not material to the jurors’ deliberations. (See People v. Mentch (2008) 45 C4th 274, 292, concurring opn. [“The parties . . . agree that . . . The court should not instruct the jury on any defense burden”]; ibid. [“trial courts might well be advised to be cautious before instructing on any defense burden”; see also People v. Deloney (1953) 41 C2d 832, 840-42; People v. Cornett (1948) 33 C2d 33, 42-44.) In a criminal context the need for clarity on the essential notion of burden of persuasion is critical. Telling jurors that the defendant must prove something poses the very real risk that they may misunderstand the burden of production to be one of persuasion, and thus mistakenly shift to him a greater burden than he may legally be compelled to carry. (See People v. Kelley (1980) 113 CA3d 1005, 1012-13; see also generally PG VII(C)(8) [Improper Shifting Of The Burden Of Proof]; but see People v. Frazier (2005) 128 CA4th 807 [CJ 12.24.1 accurately states that the defendant has the obligation to raise a reasonable doubt on the issue of compassionate use].) [See also FORECITE PG III(D); PG VII(C)(8).]
Nor do the remaining CALCRIM instructions cure the defect.
First, no other CALCRIM instruction specifically informs the jurors that the defendant has no burden of proving specific issues at trial.
Second, CALCRIM 103 which specifically defines the presumption of innocence does so only in the context of the prosecution’s burden to prove all elements of the charge. It does not discuss how the presumption relates to other essential factual issues. This suggests by implication that the presumption of innocence does not apply to essential facts which are not elements of the charge. (See FORECITE PG X(D)(5).)
Third, many of the more specific CALCRIM instructions actually suggest that the defendant may have some burden of production or proof. (See e.g., FORECITE F 103.3 Inst 2; F 104.1 Inst 1; F 100.7 Inst 1.)
Fourth, language that merely contradict an erroneous instruction does not cure the defect in the erroneous instruction. (See Francis v. Franklin (1985) 471 US 307, 322 [85 LEd2d 344; 105 SCt 1965]; People v. Noble (2002) 100 CA4th 184, 191 [contradictory instructions on burden of proof in MDO proceeding made it impossible to determine whether the jury reached its verdict using the correct burden]; People v. Elguera (1992) 8 CA4th 1214, 1219 [failure to repeat burden of proof instruction given during voir dire was prejudicial]; People v. Valenzuela (1977) 76 CA3d 218, 222.)
In sum, when considered in light of all the instructions, as the jurors are required to do (see CALCRIM 200, paragraph 5), CALCRIM 400 improperly permits the jurors to conclude that the defendant must prove or disprove certain specific issues and facts at trial.
See also FORECITE F 100.1 Inst 1.
Presumption Of Innocence: No Duty To Prove Or Disprove Anything—See FORECITE F 100.1 Inst 1.
Improper To Tell Jurors They “May Consider” Intoxication—From CC 3427; see also FORECITE F 105.2 Inst 1.
Addition Of Language Relating Intoxication To Reasonable Doubt—From CC 3406, & 4; see also CC 582, Bench Notes; CC 600, & 5; CC 620, & 5; CC 727, & 5; CC 764, & 2; CC 765, & 2; CC 2842-2845.
See also FORECITE F 315.1.2 Inst 2.
Specific Intent—It will be necessary to coordinate all references to intent. CALCRIM purports to eliminate the terminology of “specific” intent. (See CALCRIM User’s Guide, page 2.) However, there are places where the term is used in CALCRIM. (See e.g., CC 251; CC 252; CC 3406; CC 3428 [title].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 404.3 Intoxication—Language That Is Argumentative, Confusing, Etc.
F 404.3 Inst 1 Jurors Not Required To Decide
*Modify CC 404, paragraph 3 as follows [added language is underlined; deleted language is stricken]:
[Do not consider evidence of intoxication in deciding attempting to decide whether __________
<insert charged non-target offense> is a natural and probable consequence of __________ <insert target offense>.]
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 404.4 Intoxication—Burden Of Proof Issues
F 404.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
