All posts by Julie Anne Ines

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Reckless Driving Is Not an Inherently Lesser-Included Offense of Felony Evading

People v. Walker (May 6, 2021, A158423) ___ Cal.App.1st ___ [pp. 4-8] considered whether reckless driving (VC 23103) is inherently a lesser included within felony evasion of a peace officer (VC 2800.2).

 

Both crimes expressly require that the driving be in a, “willful or wanton disregard for the safety of persons or property.”

 

However, Walker concluded that “willful and wanton” means different things in the two statutes. The term in reckless driving means, “(1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, and (2) he or she intentionally ignores that risk.” Felony evasion defines the term much more broadly including a list of actions that wouldn’t qualify as reckless driving such as driving an unregistered car.

 

Accordingly, the Court held that because felony evading doesn’t include all the elements of reckless driving, reckless driving isn’t an inherently lesser-included offense within felony evading. (Ibid.)

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Provocative Act of Murder: Applicability of Concurrent Causation and Transferred Intent Under Review in CSC

As Justice Kennard explained in her concurring opinion in Sanchez, (People v. Sanchez (2001) 26 C4th 834) the underlying distinction between Cervantes (People v. Cervantes (2001) 26 C4th 860) and Sanchez is that the former was a revenge killing while the latter was mutual combat. In Sanchez the defendant and the rival gang member were firing at each other when a bullet from one of their guns killed the bystander. Hence, the defendant was guilty under the provocative act doctrine in light of the principles of concurrent causation and transferred intent. In Cervantes the defendant fired at a rival gang member after which other members of the rival gang shot and killed a third party in revenge. Because the person at whom the defendant had fired in Cervantes did not participate in the killing of the third party and because the third party was not killed during an exchange of shots at a single time and place, proximate and legal causation were not established. (Sanchez, 26 C4th at 857, Kennard, J., concurring.)

However, the CSC is currently considering the Sanchez concurrent cause doctrine in People v. Carney, S260063. (C077558; nonpublished opinion; rev. gtd.3/25/2020.) Review limited to the following issues: (1) Does the “substantial concurrent causation” theory of liability of People v. Sanchez (2001) 26 Cal.4th 834 permit a conviction for first degree murder if the defendants did not fire the shot that killed the victim? (2)What impact, if any, do People v. Chiu (2014) 59 Cal.4th 155 and Senate Bill No. 1437 (Stats. 2018, ch. 1015, §1, subd. (f)) have on the rule of Sanchez?

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SB 1437 Update

This post:

 

SB 1437, Which Amended the Natural and Probable Consequences Doctrine as It Relates to Murder, Bars a Conviction for Second Degree Murder Under That Theory  December 23rd, 2020

 

discusses People v. Gentile (2020) 10 Cal.5th 830, 842 which barred a conviction for second degree murder under the natural and probable consequences theory. Gentile also held that the procedure set forth in PC 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal.

However, a number of post-Gentile issues are still pending in the CSC concerning SB 1437.

See this post

Two Issues Regarding Accomplice Liability for Attempted Murder Currently Before the CSC March 17th, 2020

discussing People v. Lopez, S258175. (B271516; 38 Cal.App.5th 1087; rev. gtd.11/13/2019 in which the CSC granted review to consider the following issues: (1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine? (2)In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States(2013) 570 U.S. 99 and People v. Chiu(2014) 59 Cal.4th 155?

See also People v. Lewis, S260598. (B295998; 43 Cal.App.5th 1128; rev. gtd. 3/18/2020.) Review limited review to the following issues: (1)May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2)When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?

 

 

 

See also, People v. Carney, S260063. (C077558; nonpublished opinion; rev. gtd.3/25/2020.) Review limited to the following issues: (1) Does the “substantial concurrent causation” theory of liability of People v. Sanchez (2001) 26 Cal.4th 834 permit a conviction for first degree murder if the defendants did not fire the shot that killed the victim? (2)What impact, if any, do People v. Chiu (2014) 59 Cal.4th 155 and Senate Bill No. 1437 (Stats. 2018, ch. 1015, §1, subd. (f)) have on the rule of Sanchez?

See also People v. Strong, S266606. (C091162; nonpublished opinion; rev. gtd. 3/10/2021.) Review granted to consider the following issue: Does a felony-murder special circumstance finding (Pen.Code,§190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making prima facie showing of eligibility for relief under Penal Code section 1170.95?

 

 

See also, People v. Harris. S267802. (B300410; 2/16/21; C/A 2nd, Div. 7; rev. gtd. 3/21/2021.) Briefing deferred pending decision in People v. Lewis, S260598, which presents the following issues: (1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)? and pending decision in People v. Strong, S266606, which presents the following issue: Does a felony-murder special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95?

NOTE: Harris presents three issues.

First, what can the judge look at to determine initial eligibility sufficient to issue an Order to Show Cause (OSC) for an inmate seeking release? One line of cases says that PC 1170.95 means that the inmate’s allegations that he’s eligible require issuance of an OSC. Another line says that the court should examine the record of conviction such as the accusatory pleading, the verdict forms, and the abstract of judgment), and can deny the initial petition if that documentation shows that the inmate isn’t eligible. Harris agreed with the latter line of cases.

Second, Harris considered the viability of the trial court’s ruling that the finding of a special circumstance established that this defendant was a major participant in the underlying felony, thereby rendering him ineligible for SB 1437 relief. The court of appeal concluded that since , the definition of “major participant” was significantly narrowed in Banks (61 C4th 788) and Clark (63 C4th 522) which were issued after the conviction in this case there has been no proper finding that the defendant was a major participant as that term is now defined.

Third, some courts have required the defendant to file a habeas corpus petition back in the court where he was convicted, raising the Banks and Clark major participant/reckless indifference issue, as a prerequisite to relief under SB 1437. The Harris court disagreed.

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Controlled Substances: Usable Quantity Element

PC 4573 bars transporting “any controlled substance” into a correctional facility. People v. Blanco (Feb. 24, 2021, E073176) 61 Cal.App.5th 278 [pp. 12] concluded that “the Legislature intended for a usable quantity to be an element of section 4573.”

 

Accordingly, CC 2304 correctly requires the jury to find usable quantity as an element a charge of violating PC 4573.

 

But see, People v. Rubacalba (1993) 6 C4th 62, 64-67, holding that the usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. No particular purity or narcotic effect need be proven. (Ibid.; see also, State v. Baker (1995) 912 SW2d 541 [possession of a crack pipe containing burnt cocaine residue detectable through lab analysis but too small to measure will not sustain a conviction for possession of cocaine. Only a measurable quantity of a drug can sustain a conviction for possession. The residue present on the pipe indicates only that it had been used to smoke cocaine in the past and the most the defendant may be found guilty of is possession of drug paraphernalia].)

The Rubacalba court did note, however, that the concentration of the substance might in some situations be relevant to the element of knowledge. (Rubacalba, 6 C4th at 66.)

Blog

CALCRIM Is Not the Law

In People v. Burgess (Feb. 11, 2021, D076287) ___ Cal.App.4th ___ [pp. 6] the defendant maintained that his PC 29815 conviction must be reversed because no evidence showed his firearm restriction probation condition was ordered by a court. He pointed to the language in two jury instructions, CALCRIM Nos. 2512 and 3500, the first stating the jury must find a court ordered the firearm restriction and the second stating that his charge was “possession of a firearm by a person prohibited by a court order.” From these, Burgess argues an essential element of the offense—a court-ordered firearms restriction probation condition—was not been met.

The reviewing court rejected the defense contention because CALCRIM is “not the law….” (Ibid; see also PG XI(A)(3.3) Like CALJIC, CALCRIM Is Not Sacrosanct

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Is Assault by Means of Force Likely to Produce Great Bodily Injury a Lesser Included Offense of Assault With a Deadly Weapon?

Review granted in People v. Aguayo, S254554. (D073304; 31 Cal.App.5th 758; San Diego County Superior Court; SCS295489.) to consider the following issues:

 

(1) Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? (See People v. Aledamat (2019) [8] Cal.5th 1, 16, fn. 5.)

 

(2) If so, was defendant’s conviction of assault by means of force likely to produce great bodily injury based on the same act or course of conduct as her conviction of assault with a deadly weapon?

 

(3) Are Penal Code section 245, subdivision (a)(1) and section 245, subdivision (a)(4) merely different statements of the same offense for purposes of section 954?

 

(4) If so, must one of defendant’s convictions be vacated?

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Does PC 188 Require Willful and Deliberate Administration of Poison?

People v. Brown (July 16, 2019, C085998) rejected the view that “to be guilty of first degree murder by poison, the administration of poison itself must be willful, deliberate, and premeditated. Rather, it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.”

 

However, the California Supreme Court (No. S257631) is now reviewing this question as follows:

 

(1) Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger(1976) 16 Cal.3d 539, 544–546; People v. Mattison(1971) 4 Cal.3d 177,183–184, 186)? (2) Was any such instructional error prejudicial?

 

The applicable portion of the appellate opinion in Brown is the following:

Murder by Poison

In two separate but connected arguments, defendant contends no substantial evidence shows that she willfully and deliberately administered poison to the victim in a premeditated manner, and that the trial court should have included these elements in the jury instructions. She reiterates these arguments in her petition for rehearing.

The People argue that defendant forfeited this claim by not objecting or proposing other instructions in the trial court. But if defendant’s claim had merit, it would mean the jury had not been told it had to find all the elements of the offense. “Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) We reach the merits, but find no error, as we explain.

  1. The Law

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) Malice may be express or implied. “Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] . . . Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(1) & (2).)

At the time of the killing in this case (November 3, 2014), the first paragraph of section 189 read as follows:

“All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person

outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.” (Stats. 2010, ch. 178, § 51.)

People v. Rodriguez (1998) 66 Cal.App.4th 157 carefully parsed this statute and explained as follows:

“Section 189 establishes three categories of first degree murder. . . . Section 189 . . . first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill.” (People v. Rodriguez, supra, 66 Cal.App.4th at pp. 163-164, italics added, fn. omitted.)

“Thus, if a killing is murder within the meaning of sections 187 and 188, and is by one of the means enumerated in section 189, the use of such means makes the killing first degree murder as a matter of law.” (People v. Mattison (1971) 4 Cal.3d 177, 182.)

In Jennings, supra, 50 Cal.4th 616, defendant argued insufficient evidence supported his poison-murder conviction because the jury found the poison-murder special circumstance not true and because another person, who did not have intent to kill, administered the poison. (Id. at p. 639.) Our Supreme Court distinguished the special circumstance allegation from poison-murder because the special circumstance allegation requires intent to kill, whereas first degree poison-murder only requires implied malice. (Ibid.) It concluded, “even if we were to assume the jury rejected the murder-by-poison special circumstance because it was not persuaded beyond a reasonable doubt that [defendant] intended to kill [the victim] by means of the drugs, the jury still could have reasonably found defendant guilty of first degree murder by poison if it found that either codefendant acted with implied malice. [Citation.]” (Id. at pp. 639-640 (italics added).) This passage of the opinion that we have italicized requires only implied malice to prove poison-murder; it does not require that the administration of poison be undertaken as defendant argues, in a willful, deliberate, and premeditated manner.

In the similar context of lying-in-wait murder which, like poison-murder, is specifically set forth as first degree murder in section 189, we observed, “The Legislature could have concluded that an unlawful killing of a human being with implied malice aforethought (i.e., an unintended killing which results from an intentional act inherently dangerous to human life committed with knowledge of the danger to, and with conscious disregard for, human life [citation] is more deplorable than second degree murder when it is perpetrated by means of lying in wait.” (People v. Laws (1993) 12 Cal.App.4th 786, 793.) And “as defined in section 189, murder perpetrated by means of lying in wait is not the definitional equivalent of premeditated murder. An accused who committed murder perpetrated by means of lying in wait is guilty of first degree murder even if the accused did not have a premeditated intent to kill the victim.” (Ibid.)

Laws held that there is nothing in section 189 that requires lying in wait to have been done with the intent to injure. (Laws, supra, 12 Cal.App.4th at p. 794.) “To impose such a requirement would, in effect, add an additional element to the crime of first degree murder when the murder perpetrated by lying in wait is committed with implied malice. It would require that the killing result from an intentional act, the natural consequences of which are dangerous to human life, deliberately performed with knowledge of the danger to, and with conscious disregard for, human life and performed with the intent to kill or injure. We have no authority to add such an element; imposition of a requirement of independent proof of intent to kill or injure ‘would be a matter for legislative consideration.’ [Citation.] [¶] All that is required of lying in wait is that the perpetrator exhibit a state of mind equivalent to, but not identical to, premeditation and deliberation.” (Id., at pp. 794-795.)

 

  1. Analysis

The cases discussed above reject the view that, to be guilty of first degree murder by poison, the administration of poison itself must be willful, deliberate, and premeditated. Rather, it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.

Defendant’s view to the contrary rests in part on cases involving torture-murder. In People v. Steger (1976) 16 Cal.3d 539, our Supreme Court discussed the justification for the rule requiring that torture be willful, deliberate, and premeditated to support first degree murder. (Id. at pp. 545-547.) The court observed that torture-murder is punished as aggravated murder because “it is the state of mind of the torturer — the cold-blooded intent to inflict pain for person gain or satisfaction — which society condemns. Such a crime is more susceptible to the deterrence of first degree murder sanctions and comparatively more deplorable than lesser categories of murder.” (Id. at p. 546.) In People v. Cook (2006) 39 Cal.4th 566, our Supreme Court summarized the elements of torture-murder as follows: “The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victim’s death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citing, inter alia, § 189.] The defendant need not have an intent to kill the victim [citation], and the victim need not be aware of the pain. [Citations.]” (Id. at p. 602.) Thus, we agree with defendant that in the context of torture-murder, the People must prove a premeditated intent to inflict extreme and prolonged pain, i.e., to prove that torture (as defined) was used. However, defendant points to no authority explicitly extending this intent requirement to murder by poison, and we have found none.

We decline to extend the requirement merely because the two methods of killing–by torture and by poison–are specifically classified as first degree murder within the same code section. First, as explained above, in Laws we made clear the requirement did not extend to lying in wait, which was also classified as first degree murder by the same statute. Adding a willful, deliberate, and premeditated requirement to the administration of poison is equivalent to adding an intent to injure element to lying-in-wait murder.

Second, we agree with Laws that the Legislature could have concluded that an unlawful killing of a human being by poison, with malice aforethought, was more deplorable than second degree murder.

Third, where a torture-murderer is subject to aggravated punishment due to her state of mind, the cold-blooded intent to inflict pain described in Steger, in the context of poison the defendant is subject to aggravated penalties due to only the method by which the implied malice murder is perpetrated. We thus conclude the court instructed the jury in a manner consistent with the law and did not commit instructional error.

People v. Brown (July 16, 2019, C085998) ___ Cal.App.3d ___ [pp. 12-16]

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Felony Murder Special Circumstances: Tison Factors — Jury Should Not Give Undue Weight to Factors Specifically Included CC 703

In reliance on Banks and Clark, CC 703 identifies a number of specific factors for the jurors “may consider” in deciding the “reckless indifference” and “major participant” elements of the felony murder special circumstance.

 

As to reckless indifference CC 703 tells the jurors:

 

…Among the factors you may consider are:

  • Did the [sic] [Was the defendant] present during the _____________ <insert underlying felony?
  • Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?
  • Did the defendant know that [a] lethal weapon[s] (was/were) used?
  • Did the defendant know the number of weapons involved?
  • Was the defendant near the person(s) killed when the killing occurred?
  • Did the defendant have an opportunity to stop the killing or to help the victim(s)?
  • How long did the crime last?
  • Was the defendant aware of anything that would make a coparticipant likely to kill?
  • Did the defendant try to minimize the possibility of violence?
  • <insert any other relevant factors>

 

As to the major participant issue CC 703 states:

 

Among the factors you may consider are:

  • What was the defendant’s role in planning the crime that led to the death[s]?
  • What was the defendant’s role in supplying or using lethal weapons?
  • What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?
  • Was the defendant in a position to facilitate or to prevent the death ?
  • Did the defendant’s action or inaction play a role in the death?
  • What did the defendant do after lethal force was used?
  • <insert any other relevant factors.>

 

Such instructions — which list specific fact based considerations or factors for the jury to “consider” — are not necessarily improper. (See e.g, People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors].) In fact, this kind of instruction appears elsewhere in CALCRIM. (See PG XI(D)(3) CALCRIM Instructions Listing Specific Factors For Juror Consideration.)

However, when specific evidentiary factors are included in an instruction a cautionary instruction may be appropriate to avoid the danger the jurors may give undue emphasis to the enumerated factors. (See e.g People v. Taylor (2010) 48 Cal.4th 574, 656 [jury may place “undue emphasis” on overly specific instruction]; cf. Davis v. Erickson (1960) 53 C2d 860, 863-64.)

Sample Instruction:

Do not give the listed factors [greater] [undue] weight simply because they are mentioned in this instruction.

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Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.

 

As to reckless indifference CC 703 includes the following factors for the jury to “consider” —

 

  • Did [sic] [Was] the present during the <insert underlying felony?
  • Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?
  • Did the defendant know that [a] lethal weapon[s] (was/were)used?
  • Did the defendant know the number of weapons involved?
  • Was the defendant near the person(s) killed when the killing occurred?
  • Did the defendant have an opportunity to stop the killing or to help the victim(s)?
  • How long did the crime last?
  • Was the defendant aware of anything that would make a coparticipant likely to kill?
  • Did the defendant try to minimize the possibility of violence?

 

As to reckless indifference CC 703 includes the following factors for the jury to “consider” —

 

  • What was the defendant’s role in planning the crime that led to the death[s]?
  • What was the defendant’s role in supplying or using lethal weapons?
  • What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?
  • Was the defendant in a position to facilitate or to prevent the death ?
  • Did the defendant’s action or inaction play a role in the death?
  • What did the defendant do after lethal force was used?

 

CC has brackets around each of the Banks and Clark factors and instructs that “{t]he trial court should determine whether the [Banks] [Clark] factors need be given.”

 

However, it isn’t that simple because in many cases some factors will be supported by substantial evidence and others will not. In such situations the judge should delete the unsupported factor or factors:

 

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence … [citation].) On the other hand, the court “has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [citation].” (People v. Saddler (1979) 24 Cal.3d 671, 681; see People v. Armstead (2002) 102 Cal.App.4th 784, 792.) “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [Citatiion]).” (People v. Hannon (1977) 19 Cal.3d 588, 597.)

Accordingly, to instruct the jurors on inapplicable factors listed in CC 703 could lead them to improperly speculate in violation of the principles set forth in Saddler et. al.

 

In light of this danger in other contexts CALCRIM has admonished that the jurors should not be instructed on factually unsupported factors (See e.g., CC 375 [directing judge regarding list of purposes for which other crimes evidence was admitted as follows: “<Select specific grounds of relevance and delete all other options.>”]; see also CC 375 Instructional Duty: “The court must instruct the jury on what issue the evidence has been admitted to prove and delete reference to all other potential theories of relevance. [Citations]  Select the appropriate grounds from options A through H and delete all grounds that do not apply.”]; CC 763 Bench Notes: “The jury must be instructed to consider only those factors that are ‘applicable.’ (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023).”

Alternatively, a limiting instruction may be requested. (See generally People v. Jennings (2000) 81 Cal.App.4th 1301, 1317-18 [recognizing ” well-established rule that a court is obliged to give a limiting instruction upon a proper request…”] While there is no precise CC instruction designed for this purpose, there are analogous instructions from other contexts which may provide templates for such an instruction. (See e.g., CC 763 re: listed factors in death penalty sentencing trial]:

Sample Instruction [adaption of CC 763, para 4 [death penalty factors; see also Bench Notes: [“The jury must be instructed to consider only those factors that are ‘applicable.’ (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023).]

Consider, weigh, and be guided by these specific factors, where applicable.

Sample Instruction [Adaption from CJ 8.85, see also People v. Bonin (1988) 46 Cal.3d 659, 699]

You shall consider, take into account and be guided by [specified] factors, if applicable

Sample Instruction Adaption from CJ 8.85]

Only those factors which are applicable on the evidence adduced at trial are to be taken into account in the penalty determination. All factors may not be relevant and a factor which is not relevant to the evidence in a particular case should be disregarded.

Sample Instruction [Adaption of CC 200, para 1, re: deleted items in written instructions]:

 

Disregard any factor as to which no evidence was presented and do not try to guess what any evidence as to that factor might have been.

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Present Mental Competence: Defendant Must Be Able to Both Consult With Counsel and Assist in Preparation of His or Her Defense

The materials relating to the March 2021 CALCRIM revisions include a comment and request from attorney John T. Philipsborn regarding the failure of California judges “to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions” (See
full text of the request set forth below.) The CALCRIM committee declined to consider Mr. Philipsborn’s request but agreed to consider it at the next meeting: “This comment is outside the scope of the invitation. The committee will consider the suggestion at its next meeting.”

https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-
EFF5-4271-9F84-01B5C2D97B75

However, in the meantime counsel should consider a request to modify Element 2 of CC 3451 to provide as follows:

2. In a rational manner consult with his/her attorney and to assist in
preparing his/her defense; …

*****
Full text of Mr. Philipsborn’s request:

While this instruction is not presently in your collection of proposed changes and amendments, I am suggesting that the Advisory Committee should suggest a change to element (2) of the competence definition that reads as follows as present: “Assist, in a rational manner, (his/her) attorney in presenting (his/her) defense, the Committee should at the very least make reference to the United States Supreme Court’s seminal decisions on the subject of competence to stand trial.” My suggestion is that the Committee
review Indiana v. Edwards (2008) 554 U.S. 164, 170-71, referencing the standard found in Drope v. Missouri (1975) 470 U.S. 162, 171, which is that the accused can “…consult with counsel, and […] assist in preparing (his/her) defense….” I am respectfully suggesting that this change in the wording of Instruction 3451 because California trial judges who preside over competence-related jury trials are failing to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions. If the Committee is not inclined to suggest this change in the actual instruction, then at the very least, under the
section “Related Issues” that is at the foot of the instruction (which contains no reference to the fundamental definition of competence to stand trial as set forth by the United States Supreme Court), the Committee should set forth a notation that: The United States Supreme Court has succinctly stated that two cases set This comment is outside the scope of the invitation. The
committee will consider the suggestion at its next meeting.

 

While this instruction is not presently in your collection of proposed changes and amendments, I am suggesting that the Advisory Committee should suggest a change to element (2) of the competence definition that reads as follows as present: “Assist, in a rational manner, (his/her) attorney in presenting (his/her) defense, the Committee should at the very least make reference to the United States Supreme Court’s seminal decisions on the subject of competence to stand trial. “My suggestion is that the Committee
review Indiana v. Edwards (2008) 554 U.S. 164, 170-71, referencing the standard found in Drope v. Missouri (1975) 470 U.S. 162, 171, which is that the accused can “…consult with counsel, and […] assist in preparing (his/her) defense….” I am respectfully suggesting that this change in the wording of Instruction 3451 because California trial judges who preside over competence-related jury trials are failing to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions. If the Committee is not inclined to suggest this change in the actual instruction, then at the very least, under the
section “Related Issues” that is at the foot of the instruction (which contains no reference to the fundamental definition of competence to stand trial as set forth by the United States Supreme Court), the Committee should set forth a notation that: The United States Supreme Court has succinctly stated that two cases set forth the Constitution’s ‘mental competence’ standard, Dusky v. United States(1960) 362 U.S. 402, and Drope v. Missouri (1975) 420 U.S.
162. See Indiana v. Edwards(2008) 554 U.S. 164, 170-71.Inclusion of this note would avoid incorrect reference to Penal Code §§ 1367, et seq. and interpreting California decisions as the exclusive sources of the essential definitions of competence to stand trial.