SERIES 1800 THEFT AND EXTORTION
F 1862 Return Of Property Not A Defense To Theft (PC 512, PC 513)
TABLE OF CONTENTS
F 1862.1 Titles And Identification Of Parties
F 1862.1 Inst 1 Return Of Property Not A Defense To Theft—Title
F 1862.1 Inst 2 Identification Of Prosecution And Defendant
F 1862.2 Return Of Property Not A Defense To Theft—Tailoring To Facts: Persons, Places, Things And Theories
F 1862.2 Inst 1 Embezzlement: Restoration Of The Funds as Defense (PC 512)
F 1862.2 Inst 2 Delete As Improper Comment On The Specific Evidence
F 1862.2 Inst 3 (a-d) Juror Consideration Of Fact That Defendant Returned Property
Return to Series 1800 Table of Contents.
F 1862.1 Titles And Identification Of Parties
F 1862.1 Inst 1 Return Of Property Not A Defense To Theft—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1862.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1862.2 Return Of Property Not A Defense To Theft—Tailoring To Facts: Persons, Places, Things And Theories
F 1862.2 Inst 1 Embezzlement: Restoration Of The Funds as Defense (PC 512)
See FORECITE F 1806.6 Inst 1.
CALJIC NOTE: See FORECITE F 14.07b.
F 1862.2 Inst 2 Delete As Improper Comment On The Specific Evidence
*Delete CC 1862 which provides:
If you conclude that the People have proved that the defendant committed ________ <insert charged theft crime>, the return or offer to return (some/all) of the property wrongfully obtained is not a defense to that charge.
Points and Authorities
CALCRIM 1862 is an improper comment on the evidence. [See FORECITE F 416.3 Inst 4.]
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 1862.2 Inst 3.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 1862.2 Inst 3 (a-d) Juror Consideration Of Fact That Defendant Returned Property
*Add to CC 1862 (if it is not deleted, see FORECITE F 1862.2 Inst 2):
Alternative a [fact not disputed]:
However, the fact that the defendant [returned] [offered to return] (some/all) of the property is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the conspiracy] [_________________<insert specific allegation or element to which the evidence relates; e.g., ________________>].
Alternative b [fact disputed]:
However, whether or not the defendant [returned] [offered to return] (some/all) of the property is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the conspiracy] [__________________ <insert specific element to which the evidence relates; e.g., ___________________>].
Alternative c [fact disputed]:
However, whether or not the defendant [returned] [offered to return] (some/all) of the property is a factor for you to consider in deciding whether the prosecution has proven that the defendant intended to ________________.
Alternative d [fact disputed]:
*Add to paragraph 4, as follows:
However, in attempting to determine whether or not the defendant intended to permanently deprive the owner of the property, consider any evidence that the defendant [returned] [offered to return] (some/all) of the property .
Points and Authorities
See FORECITE F 416.3 Inst 7.
