SERIES 500 HOMICIDE
F 500 HOMICIDE: GENERAL PRINCIPLES
TABLE OF CONTENTS
F 500.1TITLES AND IDENTIFICATION OF PARTIES
F 500.1 Inst 1 Homicide: General Principles—Title
F 500.1 Inst 2 Identification Of Prosecution And Defendant
F 500.2HOMICIDE: GENERAL PRINCIPLES—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 500.2 Inst 1 Improper Presumption That Homicide Is Unlawful
F 500.2 Inst 2 Homicide: General Principles—Improper Burden Shifting Language
F 500.2 Inst 3 Homicide: General Principles—Deletion Of Instruction On Justification And Excuse As Overly Vague, Theoretical And Misleading
F 500.2 Inst 4 Jury Not Required To Decide If Defendant Killed Unlawfully
Return to Series 500 Table of Contents.
F 500.1 Titles And Identification Of Parties
F 500.1 Inst 1 Homicide: General Principles—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 500.1 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 500.2 Homicide: General Principles—Tailoring To Facts: Persons, Places, Things And Theories
F 500.2 Inst 1 Improper Presumption That Homicide Is Unlawful
*Delete paragraph 2, sentence 3 of CC 500 which provides as follows:
If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
CALCRIM 500 Improperly Presumes That The Killing Is Unlawful—CALCRIM 500 includes troubling language which may mislead the jurors as to basic elements of homicide. This language erroneously implies that, even without finding all the elements of a given crime, the jurors must find the defendant guilty of murder or manslaughter if “there is no legally valid excuse or justification…” Regardless of whether or not this statement is academically accurate, it abridges the federal constitution by suggesting that a person can be found guilty of unlawful homicide without proof beyond a reasonable doubt of all element of that homicide. (See FORECITE F 100.1 Inst 1)
Additionally, the language employed by CC 500 erroneously implies that the defense has an obligation to establish an excuse or justification. (Ibid.)
Finally, the very use of terms such as “excuse” or “justification” further imply an obligation on the part of the defendant as the beneficiary of the “excuse” or “justification” to produce evidence and prove or establish the matter in the minds of the jurors. (Ibid.; see also FORECITE F 500.2 Inst 3.)
The fact that other instructions may contradict the erroneous implication contained in CC 500 and the words “excuse” and “justification” does not vindicate the instruction or eliminate the potential prejudice. (See Francis v. Franklin (1985) 471 US 307, 326 [85 LEd2d 344; 105 SCt 1965]; see also FORECITE F 101.1 Inst 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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 500.2 Inst 2 Homicide: General Principles—Improper Burden Shifting Language
*Modify CC 500, paragraph 2, sentence 2 & 3 with the following [added language is underlined; deleted language is stricken]:
If a person kills with a Unless the prosecution proves that the defendant killed without any legally valid excuse or justification, the killing is lawful and he or she has not committed a crime. If there is no the prosecution has proven all required elements and the absence of any legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The language of CALCRIM 500 improperly implies that the defendant has an obligation to establish a defense of excuse. [See generally F 100.1 Inst 1.] This language is erroneous because it shifts the burden of proof to the defendant. (See In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; People v. Hill (1998) 17 C4th 800, 831.) [See also FORECITE PG III(D); PG III(C)(8).]
Furthermore, this erroneous language is not cured by contrary language elsewhere in the instructions. (See Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; see also FORECITE F 404.2 Inst 1.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 500.2 Inst 3 Homicide: General Principles—Deletion Of Instruction On Justification And Excuse As Overly Vague, Theoretical And Misleading
*Modify CC 500 as follows:
[DELETE CALCRIM 550]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
There Is No Need To Instruct The Jurors Using The “Legalese” Of “Justification” And “Excuse”—The theoretical discussion of the law of homicide in terms of justification and excuse is unnecessary and potentially misleading. A trial is not a law school class and jurors are not law students. There is no need for the jurors to understand the theoretical underpinnings of excuse and justification. All they need to know and decide is what elements need to be proven and whether the prosecution had done so beyond a reasonable doubt. (See generally FORECITE F 104.1 Inst 1.) Hence, the excuse/justification construct should be deleted throughout the homicide instructions in favor of plainer language which more simply and directly conveys only those matters which the jurors need to know and do.
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 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 500.2 Inst 4 Jury Not Required To Decide If Defendant Killed Unlawfully
*Modify CC 500, paragraph 2, sentence 4 as follows [added language is underlined]:
You must decide, if you can, whether the killing in this case was unlawful and, if so, what specific crime was committed.
Points and Authorities
See FORECITE F 100.7 Inst 1.
