F 8.55

F 8.55 n1 Pre-1992 Causation Instruction Created Improper Mandatory Presumption.

The pre-1992 versions of CJ 3.40 and CJ 8.55 merely informed the jury that if it found a natural and continuous sequence, then the defendant’s act was, as a matter of law, the proximate cause of death. This is not a correct statement of the law and was disapproved in both Mitchell v. Gonzales (91) 54 C3d 1041, 1054 [1 CR2d 913] and People v. Roberts (92) 2 C4th 271, 311-13 [6 CR2d 276]. These cases held that for criminal liability to be found, the harm must not only be the direct result of the act, but also not so remote as to fail to constitute the natural and probable consequences of defendant’s act. (See Use Note to CJ 3.40 (July 1992 Revision).)

The instruction also suffers from another infirmity not addressed in Mitchell or Roberts. The instruction includes a conclusive mandatory presumption regarding the finding of proximate cause. Such a presumption is invalid because it removes from the jury’s consideration other factors that must be considered in determining proximate cause. This mandatory presumption is unconstitutional because it conflicts with the presumption of innocence and relieves the prosecution of its burden to prove every element beyond a reasonable doubt. (See People v. Hedgecock (90) 51 C3d 395, 407 [272 CR 803].) Accordingly, the instruction implicates the 14th Amendment due process principles of the federal constitution. [See Brief Bank # B-961 for additional briefing on this issue.]

F 8.55 n2 Instruction Required Sua Sponte Where Causation Is At Issue.

Where causation is an issue, CJ 8.55 must be given sua sponte. (See People v. Bernhardt (63) 222 CA2d 567, 591 [35 CR 401].) [See Brief Bank # B-806 for additional briefing on this issue.]

F 8.55a

Homicide: Causation

*Replace CJ 8.55 with the following:

To convict the defendant of [manslaughter] [murder] you must find beyond a reasonable doubt that:

1. The defendant committed the act or acts required by the instructions which define the charged offense, and

2. When the defendant committed the required act or acts [he] [she] had the specific intent and/or mental state as required by the instructions which define the charged offense, and

3. The act or acts committed by the defendant were a cause of the [alleged] victim’s death.

[See CJ and FORECITE 3.40 and 3.41 re: instruction on causation.]

Points and Authorities

Many of the CALJIC homicide instructions fail to expressly inform the jury which elements apply to the defendant (e.g., CJ 8.10 [homicide defined], CJ 8.40 [voluntary manslaughter], CJ 8.45 [involuntary manslaughter].) The absence of such “application” language may constitute error because the jury is never specifically told that the defendant must commit each act and harbor each mental state included in the definition of the crime in order to be guilty of that crime. (See e.g., Plata v. State (Texas App 1996) 926 SW2d 300.)

This problem is particularly acute where causation is at issue. No CALJIC instruction, including CJ 8.55, which was apparently designed to be given when causation is an issue, tells the jury that the act which is a cause of death must be committed by the defendant. (See e.g., U.S. v. Main (9th Cir. 1997) 113 F3d 1046, ____ [Ninth Circuit Model Instruction on involuntary manslaughter criticized for failure to include requirement that defendant’s act or omission was a foreseeable cause of death].)

Accordingly, CJ 8.55 should be replaced with the above instruction which applies the act, intent/mental state and causation elements of the homicide to the defendant.

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

F 8.55b

Modification When Crime Involves Fetal Victim

*Modify CJ 8.55 in paragraphs which include “human being(s)” as follows:

(See FORECITE F 5.00b.)