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F 2.02 n1 Lesser Standard Argument Rejected.
In People v. Jennings (91) 53 C3d 334, 385-86 [279 CR 780], the court rejected an argument that CJ 2.01 and CJ 2.02 provide a lesser standard than CJ 2.90, but the issue may still be preserved for federal habeas or certiorari.
F 2.02 n2 Unconstitutional Inference Argument Rejected.
FORECITE has briefing available, to subscribers, arguing that CJ 2.00, CJ 2.01 and CJ 2.02 are constitutionally deficient unless limited to situations where it can be said “with substantial assurance” that the inferred fact more likely than not follows from the proved fact upon which it is made to depend. [See Brief Bank # B-503.] This argument was rejected in People v. Wilson (92) 3 C4th 926, 942-43 [13 CR2d 259], but the issue may still be preserved for federal habeas or certiorari.
F 2.02 n3 Circumstantial Evidence Instruction Applicable When Circumstantial Evidence Relates To Intent.
Use of CJ 2.01 rather than CJ 2.02 is proper unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. (People v. Marshall (96) 13 C4th 799, 849 [55 CR2d 347].)
See People v. Djou DEPUBLISHED (95) 34 CA4th 1361, 1368 [41 CR2d 147].
F 2.02 n4 Difference Between “Specific Intent” And “Mental State.”
CJ 2.02 and CJ 4.21 provide an option for making the instruction applicable to “specific intent” and/or “mental state.” Careful consideration should be given to the material issues presented by the evidence before deleting either of these options from CJ 2.02 or CJ 4.21 in a specific case. For example, when the charge is first degree murder based on premeditation and deliberation, the instructions could lead the jury to believe that intent to kill is a “specific intent” but premeditation and deliberation is a “mental state.” Accordingly, to delete the “mental state” option from CJ 2.02 or CJ 4.21 in such a case would be error. (But see People v. Castillo (97) 16 C4th 1009 [68 CR2d 648] [no IAC for failure to relate CJ 4.21 to mental state].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-681.]
Moreover, many non-homicide cases may have other mental state issues, such as willfulness or knowledge. (See FORECITE F 1.20a and F 3.30a.) Limitation of CJ 2.02 or CJ 4.21 to specific intent in such cases may also be erroneous.
F 2.02 n5 Applicability Of Circumstantial Evidence Principles To Expert Testimony.
See FORECITE F 2.01 n7.
F 2.02 n6 Mental State And Intent Are Normally Proven By Circumstantial Evidence.
Intent is inherently an issue of circumstantial evidence. (E.g., People v. Gilbert (92) 5 CA4th 1372, 1380; People v. Buckley (86) 183 CA3d 489, 494-95.) Thus, for example, an attempt to commit crime requires specific intent which must normally be proven by circumstantial evidence. “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions.” (People v. Chinchilla (1997) 52 CA4th 683, 690.)
F 2.02a Circumstantial Evidence To Prove Intent Or Mental State: Inculpatory Versus Exculpatory Mental States
*Add to CJ 2.02 when appropriate:
As to the [specific intent] [and] [mental state] included in the definition of _______ [insert exculpatory defense or theory: e.g., self-defense, heat of passion, duress, etc.] if the evidence permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its existence.
Points and Authorities
As currently worded, CJ 2.02 undermines the salutary constitutional principles of proof beyond a reasonable doubt which it is intended to promote in cases where the jury is required to make determinations as to exculpatory mental states of the defendant.
It is well established that the state and federal constitutions require the prosecution to prove the defendant guilty beyond a reasonable doubt. (See In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; People v. Carter (57) 48 C2d 737, 758-61 [312 P2d 665]; Jackson v. Virginia (79) 443 US 307, 339 [61 LEd2d 560; 99 SCt 2781]. From these principles flow the equally-established principle that the prosecution does not meet its burden when there are two equally reasonable inferences to be drawn from the evidence. (See Turner v. US (70) 396 US 398, 423 [24 LEd2d 610; 90 SCt 642] [evidence must provide a reasonable basis to conclude that one inference is more probable than the other]; see also U.S. v. Ramirez-Rodriguez (9th Cir. 1997) 552 F2d 883, 844.) When conflicting inferences are equally probable, in other words, when the evidence is in equipoise, the party with the burden of proof loses. Simons v. Blodgett (9th Cir. 1997) 110 F3d 39, 41-42; see also Wilson v. Caskey (79) 91 CA3d 124, 129 [153 CR 798] [“equal probability does not satisfy a burden of proof….”].)
CJ 2.02 and 2.01 purport to instruct the jury upon this crucial aspect of the burden of proof in the context of circumstantial evidence. However, the wording of CJ 2.02 is such that the jury may apply the principle incorrectly to mental states which are exculpatory such as self defense, duress, heat of passion, etc. (See FORECITE F 17.10a [reasonable doubt as to greater or lesser verdict must be resolved in favor of the lesser].) The current version of CJ 2.02 simply tells the jury that it must “adopt that interpretation which points [to the absence of the mental state] if there are two reasonable interpretations from the evidence.” Obviously, if the jury were to follow this instruction with respect to the determination of an exculpatory mental state, the burden would be turned around and the defendant’s constitutional rights undermined.
Accordingly, CJ 2.02 should be modified as set forth above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to a fair trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
CAVEAT: This instruction is included for use in cases where the defendant is relying upon an exculpatory mental state such as heat of passion to obtain a lesser verdict. However, where the prosecution is relying on such a mental state to support its theory, and the defense is contesting the evidence of the mental state, this modification of CJ 2.02 would not be appropriate.
F 2.02b
Mere Suspicion Or Possibility Insufficient
For Inference Of A Fact
*Add CJ 2.02:
You may not infer a fact based on a mere possibility that the fact is true. A mere possibility is nothing more than a suspicion, which is not a sufficient basis for an inference of fact.
Points and Authorities
(See FORECITE F 2.01c.)
