SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1702 Burglary: Intent Of Aider And Abettor
TABLE OF CONTENTS
F 1702.1 Titles And Identification Of Parties
F 1702.1 Inst 1 Burglary: Intent Of Aider And Abettor—Title
F 1702.1 Inst 2 Identification Of Prosecution And Defendant
F 1702.2 Burglary: Intent Of Aider And Abettor—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1702.3 Burglary: Intent Of Aider And Abettor—Language That Is Argumentative, Confusing, Etc.
F 1702.3 Inst 1 Correlation Of CC 1702 With CC 401
F 1702.4 [Reserved]
F 1702.5 Burglary: Intent Of Aider And Abettor— Elements And Definitions [Reserved]
F 1702.6 Burglary: Intent Of Aider And Abettor—Defense Theories
F 1702.6 Inst 1 (a & b) Burglary: After Acquired Intent—Element And/Or Pinpoint
F 1702 NOTES
F 1702 Note 1 Burglary: Intent Of Aider And Abettor—CALCRIM Cross-References And Research Notes
F 1702 Note 2 Burglary: Intent To Aid And Abet Must Be Formed Prior To The Perpetrator’s Departure From The Structure (PC 459)
F 1702 Note 3 Burglary: Whether Timing Of Intent To Aid And Abet Must Be Given Sua Sponte (PC 459)
Return to Series 1700 Table of Contents.
F 1702.1 Titles And Identification Of Parties
F 1702.1 Inst 1 Burglary: Intent Of Aider And Abettor—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1702.1 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 1702.2 Burglary: Intent Of Aider And Abettor—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1702.3 Burglary: Intent Of Aider And Abettor—Language That Is Argumentative, Confusing, Etc.
F 1702.3 Inst 1 Correlation Of CC 1702 With CC 401
*Modify 1702 as follows [added language is underlined; deleted language is stricken]:
The elements of aiding and abetting liability are set forth in the instruction defining aiding and abetting at page _______ of these instructions. To be guilty of burglary as an aider and abettor, the defendant must have known Elements 2 and 3 of the instruction defining aiding and abetting at page _______ of these instructions must have occurred the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure. That is, the defendant must have known of the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Under the language of CC 1702 the defendant could be found guilty of aiding and abetting without actually aiding and abetting the burglar. That is, CC 1702 tells the jurors that to be guilty of aiding and abetting a burglary the defendant need only have knowledge of the perpetrator’s unlawful purpose and the intent to aid and abet. In utilizing this language in CC 1702 it appears that the CALCRIM Committee is assuming that the jurors will assimilate its language with the definitional instruction on aiding and abetting (CC 401) and from this assimilation determine that the language of 1702 is not to be taken literally. However, there is no reason to rely on such an assumption when the matter can be expressly clarified by a modification such as the one proposed above. (See generally People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)
Identification Of Parties – See FORECITE F F100.2 Note 1.
USE NOTE – When cross referencing instructions, the instructions should contain a specific page number or title and number so the precise instruction referred to can be identified.
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1702.4 [Reserved]
F 1702.5 Burglary: Intent Of Aider And Abettor— Elements And Definitions[Reserved]
F 1702.6 Burglary: Intent Of Aider And Abettor—Defense Theories
F 1702.6 Inst 1 (a & b) Burglary: After Acquired Intent—Element And/Or Pinpoint
Alternative a:
*Add as Element to CC 401:
The defendant formed the intent to aid and abet the commission of the robbery before the perpetrator has reached a place of temporary safety with the property if he or she has not successfully escaped from the scene, is being pursued, and has challenged possession of the property.
Alternative b:
*Add as pinpoint instruction [CC 3400 adaption]:
The defendant contends that (he/she) had no knowledge of the perpetrator’s unlawful purpose and/or did not form the intent to aid and abet the commission of the burglary before _______________ <name of perpetrator> finally left the structure. The prosecution must prove beyond a reasonable doubt that the defendant had the required knowledge and intent before _______________ <name of perpetrator> finally left. The defendant does not need to prove the absence of such required knowledge or intent. If you have a reasonable doubt about whether the defendant had the required knowledge and/or intent before _______________ <name of perpetrator> finally left the structure, you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
The CALCRIM Deficiency—The literal language of CALCRIM 1702 purports to set forth what must be proved for the defendant “[t]o be guilty of a burglary as an aider and abettor.” However, standing alone CC 1702 is incomplete. (Compare CC 401.) Hence, CC 1702 should either be incorporated into the elements of CC 401 and/or converted to a properly formatted pinpoint instruction. (See e.g., CALCRIM 3400.)
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
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1702 NOTES
F 1702 Note 1 Burglary: Intent Of Aider And Abettor—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1700 [Burglary]
CALCRIM 1701 [Burglary: Degrees]
Research Notes:
See CLARAWEB Forum, Burglary And Receiving Stolen Property—Series 1700.
F 1702 Note 2 Burglary: Intent To Aid And Abet Must Be Formed Prior To The Perpetrator’s Departure From The Structure (PC 459)
In People v. Montoya (1994) 7 C4th 1027, 1044-45, the Supreme Court held that aiding and abetting liability for a burglary may be predicated on an intent formed after the perpetrator’s entry of the structure, but before the perpetrator’s departure. Hence, the court expressly disapproved CJ 14.54 which required that the intent be formed prior to the perpetrator’s entry of the structure. (But see dissent of Mosk.)
CALJIC NOTE: See FORECITE F 14.54 n2.
F 1702 Note 3 Burglary: Whether Timing Of Intent To Aid And Abet Must Be Given Sua Sponte (PC 459)
In People v. Montoya (1994) 7 C4th 1027, 1051, the court found no duty to sua sponte instruct “in light of the record” which provided no evidence that the aider and abettor’s intent was formed after the perpetrator’s final departure. (7 C4th at 1048.) Presumably if such a factual issue was presented, there would be a sua sponte duty to instruct. (See FORECITE PG V(A).)
Moreover, because an essential element of aiding and abetting liability is the formation of the requisite intent prior to or during commission of the offense, the failure to adequately instruct the jury upon this element would implicate the defendant’s right to trial by jury and due process. (U.S. Const., 6th and 14th Amendments; Calif. Const., Art. I, §15 and §16.)
CALJIC NOTE: See FORECITE F 14.54 n1.
SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1702 Burglary: Intent Of Aider And Abettor
TABLE OF CONTENTS
F 1702.1 Titles And Identification Of Parties
F 1702.1 Inst 1 Burglary: Intent Of Aider And Abettor—Title
F 1702.1 Inst 2 Identification Of Prosecution And Defendant
F 1702.2 Burglary: Intent Of Aider And Abettor—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1702.3 Burglary: Intent Of Aider And Abettor—Language That Is Argumentative, Confusing, Etc.
F 1702.3 Inst 1 Correlation Of CC 1702 With CC 401
F 1702.4 [Reserved]
F 1702.5 Burglary: Intent Of Aider And Abettor— Elements And Definitions [Reserved]
F 1702.6 Burglary: Intent Of Aider And Abettor—Defense Theories
F 1702.6 Inst 1 (a & b) Burglary: After Acquired Intent—Element And/Or Pinpoint
F 1702 NOTES
F 1702 Note 1 Burglary: Intent Of Aider And Abettor—CALCRIM Cross-References And Research Notes
F 1702 Note 2 Burglary: Intent To Aid And Abet Must Be Formed Prior To The Perpetrator’s Departure From The Structure (PC 459)
F 1702 Note 3 Burglary: Whether Timing Of Intent To Aid And Abet Must Be Given Sua Sponte (PC 459)
Return to Series 1700 Table of Contents.
F 1702.1 Titles And Identification Of Parties
F 1702.1 Inst 1 Burglary: Intent Of Aider And Abettor—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1702.1 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 1702.2 Burglary: Intent Of Aider And Abettor—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1702.3 Burglary: Intent Of Aider And Abettor—Language That Is Argumentative, Confusing, Etc.
F 1702.3 Inst 1 Correlation Of CC 1702 With CC 401
*Modify 1702 as follows [added language is underlined; deleted language is stricken]:
The elements of aiding and abetting liability are set forth in the instruction defining aiding and abetting at page _______ of these instructions. To be guilty of burglary as an aider and abettor, the defendant must have known Elements 2 and 3 of the instruction defining aiding and abetting at page _______ of these instructions must have occurred the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure. That is, the defendant must have known of the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Under the language of CC 1702 the defendant could be found guilty of aiding and abetting without actually aiding and abetting the burglar. That is, CC 1702 tells the jurors that to be guilty of aiding and abetting a burglary the defendant need only have knowledge of the perpetrator’s unlawful purpose and the intent to aid and abet. In utilizing this language in CC 1702 it appears that the CALCRIM Committee is assuming that the jurors will assimilate its language with the definitional instruction on aiding and abetting (CC 401) and from this assimilation determine that the language of 1702 is not to be taken literally. However, there is no reason to rely on such an assumption when the matter can be expressly clarified by a modification such as the one proposed above. (See generally People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)
Identification Of Parties – See FORECITE F F100.2 Note 1.
USE NOTE – When cross referencing instructions, the instructions should contain a specific page number or title and number so the precise instruction referred to can be identified.
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1702.4 [Reserved]
F 1702.5 Burglary: Intent Of Aider And Abettor— Elements And Definitions[Reserved]
F 1702.6 Burglary: Intent Of Aider And Abettor—Defense Theories
F 1702.6 Inst 1 (a & b) Burglary: After Acquired Intent—Element And/Or Pinpoint
Alternative a:
*Add as Element to CC 401:
The defendant formed the intent to aid and abet the commission of the robbery before the perpetrator has reached a place of temporary safety with the property if he or she has not successfully escaped from the scene, is being pursued, and has challenged possession of the property.
Alternative b:
*Add as pinpoint instruction [CC 3400 adaption]:
The defendant contends that (he/she) had no knowledge of the perpetrator’s unlawful purpose and/or did not form the intent to aid and abet the commission of the burglary before _______________ <name of perpetrator> finally left the structure. The prosecution must prove beyond a reasonable doubt that the defendant had the required knowledge and intent before _______________ <name of perpetrator> finally left. The defendant does not need to prove the absence of such required knowledge or intent. If you have a reasonable doubt about whether the defendant had the required knowledge and/or intent before _______________ <name of perpetrator> finally left the structure, you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
The CALCRIM Deficiency—The literal language of CALCRIM 1702 purports to set forth what must be proved for the defendant “[t]o be guilty of a burglary as an aider and abettor.” However, standing alone CC 1702 is incomplete. (Compare CC 401.) Hence, CC 1702 should either be incorporated into the elements of CC 401 and/or converted to a properly formatted pinpoint instruction. (See e.g., CALCRIM 3400.)
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
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1702 NOTES
F 1702 Note 1 Burglary: Intent Of Aider And Abettor—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1700 [Burglary]
CALCRIM 1701 [Burglary: Degrees]
Research Notes:
See CLARAWEB Forum, Burglary And Receiving Stolen Property—Series 1700.
F 1702 Note 2 Burglary: Intent To Aid And Abet Must Be Formed Prior To The Perpetrator’s Departure From The Structure (PC 459)
In People v. Montoya (1994) 7 C4th 1027, 1044-45, the Supreme Court held that aiding and abetting liability for a burglary may be predicated on an intent formed after the perpetrator’s entry of the structure, but before the perpetrator’s departure. Hence, the court expressly disapproved CJ 14.54 which required that the intent be formed prior to the perpetrator’s entry of the structure. (But see dissent of Mosk.)
CALJIC NOTE: See FORECITE F 14.54 n2.
F 1702 Note 3 Burglary: Whether Timing Of Intent To Aid And Abet Must Be Given Sua Sponte (PC 459)
In People v. Montoya (1994) 7 C4th 1027, 1051, the court found no duty to sua sponte instruct “in light of the record” which provided no evidence that the aider and abettor’s intent was formed after the perpetrator’s final departure. (7 C4th at 1048.) Presumably if such a factual issue was presented, there would be a sua sponte duty to instruct. (See FORECITE PG V(A).)
Moreover, because an essential element of aiding and abetting liability is the formation of the requisite intent prior to or during commission of the offense, the failure to adequately instruct the jury upon this element would implicate the defendant’s right to trial by jury and due process. (U.S. Const., 6th and 14th Amendments; Calif. Const., Art. I, §15 and §16.)
CALJIC NOTE: See FORECITE F 14.54 n1.
