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F 2.51 n1 Motive: Distinguished From Intent And Malice.
In People v. Snead (93) 20 CA4th 1088, 1098 [24 CR2d 922], the Court of Appeal rejected an argument that the motive instruction conflicted with other instructions concerning intent and malice. The court concluded that the words motive, intent and malice are “separate and disparate mental states.”
F 2.51 n2 Child Annoyance: Improper To Give CJ 2.51 re: Motive (PC 647.6).
CJ 16.440 correctly informs the jury that, under PC 647.6, motive is an element of the charge because the acts of the defendant must be motivated by an unnatural or abnormal sexual interest in the victim. Hence, it is error to give CJ 2.51 which tells the jury that motive is not an element of the offense. (People v. Maurer (95) 32 CA4th 1121, 1126-27 [38 CR2d 335])
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-665 a/b/c.]
F 2.51a
Motive: Guilt and Innocence
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 2.51 was amended to adopt FORECITE’s recommendation that the term “innocent” be replaced with “not guilty.”
*Modify CJ 2.51 to provide as follows [added language is capitalized; deleted language is between <<>>]:
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may <<tend to establish innocence>> BE SUFFICIENT TO LEAVE YOU WITH A REASONABLE DOUBT AS TO THE GUILT OF THE DEFENDANT. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.
Points and Authorities
[See FORECITE F 1.00b]
Accordingly, CJ 2.51, which implies that the defendant must “prove innocence,” should also be revised as set forth above.
NOTES
People v. Estep (96) 42 CA4th 733 [49 CR2d 859] held that the failure of the trial court to sua sponte modify CJ 2.51 as set forth above did not violate due process. However, the decision does not foreclose raising the issue in other state courts or in federal court. Nor does Estep rule out modification of the instruction upon request.
People v. Frye (98) 18 C4th 894, 958 [77 CR2d 25] held that in light of other instructions given in that case, and the prosecutor’s argument, use of the term innocence in CJ 2.51 regarding motive did not shift the burden of proof to the defendant to prove his innocence.
RESEARCH NOTES
See FORECITE BIBLIO 2.51.
F 2.51b
Motive: Application To Third Party Suspect
*When appropriate, modify CJ 2.51 to provide as follows [added language is capitalized]:
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive IN THE DEFENDANT OR_____ [insert name of third party] _____ may tend to establish THAT PERSON’S guilt. Absence of motive IN THE DEFENDANT OR _____ [insert name of third party] _____ may tend to establish THAT PERSON’S innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.
Points and Authorities
Motive can be highly probative evidence. “[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effects, and wide latitude is permitted in admitting evidence of its existence.” (People v. Lopez (69) 1 CA3d 78, 85; see also People v. Gonzalez (2005) 126 CA4th 1539; see also People v. Martin (94) 23 CA4th 76, 81 [gang activity or membership admissible where “important to motive . . . even if prejudicial”].)
Accordingly, where evidence of the guilt of a third party is presented, CJ 2.51 should be modified to allow the jury to consider the third party’s motive in determining whether the third party evidence leaves the jurors with a reasonable doubt as to the defendant’s guilt. (See FORECITE F 2.03d and F 4.020).
NOTE: CJ 2.51 makes no reference to motive in connection with a specific party, but in context it clearly refers to the defendant and no one else. For example, “presence of motive” in a third party would not “tend to establish guilt” of a defendant charged at trial.
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 violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 2.51c
F 2.51c
Motive Alone Insufficient To Establish Guilt
ALTERNATIVE INSTRUCTION # 1:
*Modify CJ 2.51 as follows:
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. YOU MAY CONSIDER <<P>>presence of motive <<may>> AS tendING to <<establish>> SHOW THAT the defendant is guilty. YOU MAY CONSIDER ABSENCE OF MOTIVE AS TENDING TO SHOW THAT THE DEFENDANT IS NOT GUILTY. HOWEVER, MOTIVE IS NOT SUFFICIENT BY ITSELF TO PROVE GUILT, AND ITS WEIGHT AND SIGNIFICANCE, IF ANY, ARE FOR YOU TO DECIDE.
ALTERNATIVE INSTRUCTION # 2:
*Add to CJ 2.51:
Evidence of mere motive or opportunity to commit the crime, without more, will not suffice to prove the defendant’s guilt beyond a reasonable doubt. There must be direct or circumstantial evidence linking the defendant to the actual perpetration of the crime.
[Source:
People v. Hall (86) 41 C3d 826, 833; see also
People v. Harris (2005) 37 C4th 310, 340.]
Points and Authorities
It is beyond question that motive alone is insufficient as a matter of law to prove guilt. Due process requires substantial evidence of guilt. (Jackson v. Virginia (79) 443 US 307 [61 LEd2d 560; 99 SCt 2781].) Motive alone does not meet this standard because a conviction based on such evidence would be speculative and conjectural. (See e.g., U.S. v. Mitchell (9th Cir. 1999) 172 F3d 1104 [motive alone insufficient to prove larceny].)
However, of all the standard evidentiary instructions (CALJIC No. 2.00 et seq.), the motive instruction (CJ 2.51) is the only one which informs the jury that a single circumstance “may tend to establish the defendant is guilty.” (Emphasis added.) Every other instruction covering an individual circumstance includes an admonition that it is insufficient to establish guilt:
- CALJIC No. 2.03 (Consciousness Of Guilt—Falsehood): “However, that conduct is not sufficient by itself to prove guilt ….”
- CALJIC No. 2.04 (Efforts By Defendant To Fabricate Evidence): “However, that conduct is not sufficient by itself to prove guilt ….”
- CALJIC No. 2.05 (Efforts Other Than By Defendant To Fabricate Evidence): “[T]hat conduct is not sufficient by itself to prove guilt ….”
- CALJIC No. 2.06 (Efforts To Suppress Evidence): “However, this conduct is not sufficient by itself to prove guilt ….”
- CALJIC No. 2.15 (Possession Of Stolen Property): “[T]he fact of that possession is not by itself sufficient to permit an inference that the defendant _______ is guilty of the crime of _______.”
- CALJIC No. 2.16 (Dog-Tracking Evidence): “This evidence is not by itself sufficient to permit an inference that the defendant is guilty of the crime of _______.”
- CALJIC No. 2.50.01 (1999 Revision) (Evidence Of Other Sexual Offenses): “However, . . . that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged crime[s].”
- CALJIC No. 2.50.02 (1999 Revision) (Evidence Of Other Domestic Violence): “However, . . . that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged offense[s].”
- CALJIC No. 2.52 (Flight After Crime): “[F]light . . . is not sufficient in itself to establish [his] [her] guilt ….”
To the extent that CALJIC No. 2.51 is startlingly anomalous in this context, it risks prejudicing defendant during deliberations. If the court reads any one or more of the other evidentiary instructions listed above, it will typically be within moments of the motive instruction. To reasonable minds, that instruction would appear to include an intentional omission: If motive were insufficient by itself to establish guilt, the instruction obviously would say so. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ….” (People v. Castillo, supra, 16 C4th at 1020 [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius “is a product of logic and common sense”].) To reasonable minds, CJ 2.01 and CJ 2.02 would appear to include an intentional omission. That is how the Supreme Court reasoned in People v. Dewberry (59) 51 C2d 548, 557[334 P2d 852]:
“The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.” (See alsoPeople v. Salas (76) 58 CA3d 460, 474 [129 CR 871] [when a generally applicable instruction, such as CJ 2.02, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error].) Effectively, the context highlights the omission, so the jury learns that it may properly use motive alone to establish guilt. This would violate the defendant’s federal and state constitutional rights to due process of law and fair trial by jury. (5th, 6th and 14th Amendments.)
F 2.51d
Motive Alone Not Sufficient To Prove Guilt
*Replace CJ 2.51, 2nd sentence, with the following:
Presence of motive is not sufficient in itself to establish the defendant’s guilt but is a fact which, if proved, may be considered by you in deciding in the light of all the other proved facts in deciding whether the defendant is guilty or not guilty.
[Source: CJ 2.52.]
Points and Authorities
In the context of the entire set of standard CALJIC instructions, CALJIC No. 2.51 effectively informs the jury that motive alone may be the basis for a finding of guilt. (See generally People v. Lewis (2001) 25 C4th 610, 649 [in assessing claim of error court must “consider the entire charge to the jury and not simply the asserted deficiencies in the challenged instruction”].)
Of the evidentiary instructions typically given to the jury, the motive instruction is the only one identifying a single circumstance which “may tend to establish the defendant is guilty. Instructing the jury that the People have introduced evidence ‘tending to prove’ appellant’s guilt carries the inference that the People have, in fact, established guilt.” (People v. Owens (94) 27 CA4th 1155, 1158, italics added.) Every other instruction covering an individual evidentiary circumstance includes an admonition that it is insufficient to establish guilt or otherwise made that point clear. (See e.g., CALJIC 2.23; 2.23.1; 2.52; 3.01; 6.13; 6.18.)
To the extent that CJ 2.51 is startlingly anomalous in this context, it prejudices defendant. To reasonable jurors CALJIC 2.51 would appear to include an intentional omission: If motive were insufficient by itself to establish guilt, the instruction would say so. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusio alterius, the deductive concept is commonly understood, and . . . [may] mislead a reasonable juror . . . .” (People v. Castillo (97) 16 C4th 1009, 1020 (conc. opn. of Brown, J.); see also United States v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense”].)
That is how the Court reasoned in People v. Dewberry (59) 51 C2d 548, 557; see also People v. Salas (76) 58 CA3d 460, 474 [when generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another, the inconsistency may be prejudicial error].)
There is a “reasonable likelihood that the jury . . . [will apply CJ 2.51 instruction in a way that violates the Constitution. [Citation.]” (Estelle v. McGuire (91) 502 US 62, 72, internal quotation marks omitted.) CJ 2.51 allows the jury to infer a finding of guilt from evidence of motive. This violates defendant’s federal and state constitutional rights to due process and jury trial. “Permissive inference jury instructions are disfavored because they ‘tend to take the focus away from the elements that must be proved.’ [Citation.]” (Hanna v. Riveland (9th Cir. 1996) 87 F3d 1034, 1037.) Nevertheless, a permissive inference instruction comports with due process unless, “under the facts of the case, there is no rational way for the jury to make the connection permitted by the inference.” (Ulster County Court v. Allen (79) 442 US 140, 157.) Under those circumstances, there is an unacceptable “risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Ibid.)
In sum, because motive alone is not a rational basis upon which to infer guilt (see e.g., People v. Hall (86) 41 C3d 826, 833, 835 [motive insufficient to support third-party culpability defense]; United States v. Mitchell (9th Cir. 1999) 172 F3d 1104 [motive to obtain money insufficient to prove guilt of robbery]), CJ 2.51 effectively lowers the prosecution’s burden of proof, violating due process. (Ulster County Court v. Allen, supra, 442 US at 157 [60 LEd2d at 792]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 315-316.)
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