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Improper to Give CC 370 [Motive Not an Element] in Cases Requiring Motive

Conflicting intent instructions—where one instruction requires the prosecution to prove intent while another instruction eliminates that requirement—can remove an element of the charge in violation of the Due Process Clause of the federal constitution. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1128; see also People v. Lee (1987) 43 Cal.3d 666, 673–674.) This is so even where the court’s instructions on the offense itself correctly explain the required intent, because we have “no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322 [85 L. Ed. 2d 344, 105 S.Ct. 1965]; see also People v. Gay (2008) 42 Cal.4th 1195, 1225–1226.)

People v. Valenti, 243 Cal. App. 4th 1140, 1164-65, 197 Cal. Rptr. 3d 317, 336-37 (2016) held that CC 1122 and CC 370 are one such pair of conflicting instructions. CC 1122 correctly tells the jury that to convict a defendant of violating PC 647.6, the prosecution must prove the defendant was motivated by an unnatural sexual interest in a particular child or in children generally. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503–504.) However, CC 1122 incorrectly instructs that the prosecution does not have to prove motive. Thus, when motive is an element of the charge, the judge errs by giving an unmodified version of CC 370, which is an optional instruction. ( (People v. Maurer (1995) 32 Cal. App. 4th 1121, 1128; see also People v. Romo (1975) 14 Cal.3d 189, 196 [not error to refuse instruction on motive].)

CALCRIM Revision Note – Effective August 26, 2016 the CALCRIM committee modified the bench notes for CC 1121, CC 1122, CC1125, and CC 1126 to add an admonition to not give CC 370 in such cases. See: here.

Motive Instruction (CC 370): The Latest Calcrim Revision

Effective August 26, 2016 the CALCRIM committee modified the bench notes for CC 1121, CC 1122, CC1125, and CC 1126 to add an admonition to not give CC 370 in such cases. See: here.

The following post addresses that change.

However, there are several issues and tactics regarding instruction on motive which CALCRIM does NOT address which will be discussed in subsequent posts including the following:

Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?

Does “Tending to Show” language in CC 370 encourage jurors to vote for guilt based on motive alone?

Should Jurors be affirmatively instructed that motive is not alone sufficient to prove guilt?

Should the motive instruction be modified when the defense argues that someone else committed the crime?

Should CC 370 be modified in cases requiring premeditation and deliberation to require consideration of planning and manner evidence?

Does CC 370 employ unconstitutional burden shifting language?

Even when motive is not an element of the charge may a juror vote to acquit based solely on the absence motive?

Does the defense have the right to a pinpoint instruction relating the absence of motive to the prosecution’s burden of proof?

Does CC 370 provide a template for defense pinpoint instructions such as the absence of flight?

Premeditation and Deliberation Is Not Alone Sufficient to Prove Lying In Wait

In People v. Nelson (2016) 1 Cal.5th 513 the evidence of “a substantial period of watching and waiting” was insufficient, so the finding of lying in wait was set aside (both as a theory of first-degree murder and as a special circumstance).  “The evidence showed, directly or by reasonable inference, that Nelson rode his bicycle to the area near the Target parking lot, where he had reason to believe the victims would be waiting to go to work. He concealed his bicycle and came up behind his victims on foot to take them by surprise. He shot the two victims in quick succession. After ensuring his victims were dead by shooting them a second time, he retrieved his bicycle and left. [¶] There is no evidence, however, that Nelson arrived before the victims or waited in ambush for their arrival. In the absence of such evidence, there is no factual basis for an inference that before approaching the victims, he had concealed his bicycle and waited for a time when they would be vulnerable to surprise attack. The jury was presented with no evidence from which it could have chosen, beyond a reasonable doubt, that scenario over one in which defendant arrived after the victims, dismounted from his bicycle, and attacked them from behind without any distinct period of watchful waiting.” (1 C3d at 551.)

“[T]he fact that there was substantial evidence of premeditation and deliberation does not necessarily mean there was substantial evidence of watching and waiting for an opportune time to act [sufficient to support a finding of lying in wait].  (See People v. Sandoval (2015) 62 Cal.4th 394, 424.)” (1 C3d at 552.)

Standard of Prejudice: Penalty Phase Error

People v. Grimes (2016)1 Cal.5th 698, 721-23 held that under California law trial court’s erroneous exclusion of evidence is harmless as to penalty unless there is a “reasonable possibility” that the jury would have rendered a different verdict had the erroneously excluded evidence been presented to the jury.  The “reasonable possibility” standard is “the same, in substance and effect” as the Chapman test for federal constitutional error which requires reversal unless the reviewing court can say beyond a reasonable doubt that the error was harmless.

In Grimes, while the CSC “cannot say with certainty whether the evidence would ultimately have cause the jury to render a different verdict,”  by the same token the court cannot conclude that the jury’s verdict was “surely unattributable” to the error in the exclusion of exculpatory evidence from the co-perpetrator’s statement against interest.  Consequently, the CSC concludes that there is a “reasonable possibility” that had the jury heard the excluded evidence a different verdict would have been rendered.

Death Penalty Mitigation: Fetal Alcohol Evidence (FAE)

In Trevino v. Davis (5th Cir. 2016) 829 F.3d 328 the district court erred by concluding that evidence of Fetal Alcohol Effect (FAE) was “double-edged,” suggesting future dangerousness, so there was no prejudice from trial counsel’s failure to develop it.  According to petitioner’s habeas expert, “his history of FAE clearly had an impact on his cognitive development, academic performance, social functioning, and overall adaptive functioning. These factors, along with his significant history of physical and emotional abuse, physical and emotional neglect, and social deprivation clearly contributed to Mr. Treviño’s ability to make appropriate decisions and choices about his lifestyle, behaviors and actions, his ability to withstand and ignore group influences, and his ability to work through and adapt to frustration and anger. These deficits would not only have impacted any of Mr. Treviño’s decisions to participate in or refrain from any activities that resulted in his capital murder charges, but also likely impacted his ability to understand and make appropriate decisions about the plea offer presented by his counsel.”  Treviño’s failure to express remorse was “the most aggravating factor,” but FAE can produce an “inability to express remorse in a recognizable manner.”

Regarding remorse, see F 763.13.

Mayberry Defense Applies to Misdemeanor Sexual Battery

People v. Andrews (2015) 234 CA4th 590, 592 considered whether the Mayberry [People v. Mayberry (1975) 15 Cal.3d 143] defense of honest and reasonable belief in consent is applicable to the crime of misdemeanor sexual battery. Andrews concluded that in an appropriate case honest and reasonable belief in the victim’s consent may be a valid defense theory in a sexual battery prosecution.

The crime of misdemeanor sexual battery requires a the touching of “an intimate part of another person … against the will of the person touched … for the specific purpose of  sexual arousal, sexual gratification, or sexual abuse.” (PC 243.4(e).) “A defendant therefore commits a sexual battery if he engages in an intimate, nonconsensual touching.” (People v. Babaali (2009) 171 Cal.App.4th 982, 995–996.) In other words sexual battery is a specific intent crime (People v. Chavez (2000) 84 Cal.App.4th 25, 29) and belief in that the victim consented “is incompatible with the existence of wrongful intent.” (People v. Williams (1992) 4 C4th, 352, 360, fn. omitted.)

Accordingly, the Andrews court held that a mistaken but honest and reasonable belief of the victim’s consent is available to defendants charged with sexual battery where there is substantial evidence to support the defense and it is not inconsistent with the defendant’s theory of the case.(Andrews, 234 CA4th at 602-03.)

In light of Andrews the CALCRIM Committee add the Mayberry defense theory to its sexual battery instructions CC 935 and CC 938 as follows:

[The defendant is not guilty of sexual battery if (he/she) actually and reasonably, even if mistakenly, believed that the other person consented to the touching [and actually and reasonably believed that (he/she) consented throughout the act of touching]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.]

CC 703: Felony Murder: Special Circumstance Liability — Factors Re: Major Participant Determination

PC 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137 [95 L. Ed. 2d 127, 107 S. Ct. 1676], “which articulates the constitutional limits on executing felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal. 4th 788, 794.) “Tison and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782 [73 L. Ed. 2d 1140, 102 S. Ct. 3368], collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions. Section 190.2(d) must be accorded the same meaning.” [Emphasis added.] (Banks, supra.)

Banks described the nature of this spectrum by explaining that Enmund and Tison do not establish maximum and minimum limits of death eligibility:

The actions of Earl Enmund, the Tison brothers, and countless other nonkiller felony murderers fall on a continuum, a spectrum of culpability. To ask whether there is any variation at all between Matthews’s conduct and Enmund’s is certainly relevant, but in doing so we do not simply assume Enmund’s conduct represents a constitutional maximum, i.e., the most culpable one can be and yet still be constitutionally ineligible for death, such that any variation would move one into the death-eligible zone. Nationally, thousands of armed robberies occur each year; per Enmund, only roughly 1 in 200 results in death. (Enmund v. Florida, supra, 458 U.S. at p. 800, fn. 24.) If Enmund’s actions represented the outer limit of conduct immune from death eligibility, Tison would have been an easy case. It was not. We do not view Enmund as defining a maximum for ineligibility for the death penalty, any more than we view the egregious actions of the Tison brothers as a constitutional minimum level of culpability for death eligibility.

(Banks, 61 C4th at 811.)

Banks discussed the factors relevant to where a particular defendant falls on the spectrum as follows:

“Among those factors that distinguish the Tisons from Enmund, and thus may play a role in determining whether a defendant’s culpability is sufficient to make him or her death eligible, are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation “in criminal activities known to carry a grave risk of death” [citation] was sufficiently significant to be considered “major” [Citations.].”

(Banks, 61 C 4th at 803.)

In light of Banks the CALCRIM Committee added the following language to CC 703:

 [When you decide whether the defendant was a major participant,consider all the evidence. Among the factors you may consider are:

  1. What role did the defendant play in planning the criminal enterprise that led to the death[s]?

2. What role did the defendant play in supplying or using lethal weapons?

3. What awareness did the defendant have of particular dangers posed by the nature of the crime, any weapons used, or past experience or conduct of the other participant[s]?

4. Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder?

5. Did the defendant’s own actions or inactions play a particular role in the death?

6. What did the defendant do after lethal force was used?

[7._____________________<insert any other relevant factors.>]

No one of these factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant.


California Supreme Court Continues to Grant Review in “Kill Zone” Cases

On July 27, 2016 the CSC granted review in yet a another “kill zone” case:

People v. Cardona (2016) 246 Cal.App.4th 608, review granted 7/27/2016 (S234660/B261458). Briefing deferred pending decision in People v. Canizales (2014) 229 Cal.App.4th 820, review granted 11/19/2014 (S221958/E054056), which presents the following issue: Was the jury properly instructed on the “kill zone” theory of attempted murder?

See also this post California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine

Is Larcenous Intent an Element of Robbery?

For decades CALJIC 9.40 has relied on the literal language of PC 211 to define the specific intent required for robbery as an intent to permanently deprive the possessor of the property that is taken. However, this definition is erroneous because robbery requires an intent to steal which is defined as an intent to permanently deprive the owner – not the posssessor — of the property. (See e.g., People v. Ford (1964) 60 Cal.2d 772, 792-793 [judge must go beyond the literal language of PC 211 to include specific intent to steal when defining robbery by giving former CALJIC No. 72-B “even without a request therefore by defendant”].) Former CALJIC No. 72-B provided, inter alia, as follows:

…[I]n the crime of robbery, a necessary element is the existence in the mind of the perpetrator of the specific intent to permanently deprive an owner of his property; and, unless such intent so exists, that crime is not committed.” [Emphasis added] (People v. Spencer (1963) 60 Cal.2d 64, 87.)

Subsequent appellate decisions have confirmed that Spencer, Ford, and former CALJIC No. 72-B correctly defined the mens rea of robbery. Some of the more recent decisions that do so include the following:

People v. Williams (2013) 57 Cal.4th 776, 786-787 — “Because California’s robbery statute (PC 211) uses the common law’s phrase “felonious taking,” and because at common law “felonious taking” was synonymous with larceny, we conclude that larceny is a necessary element of robbery.”

People v. Anderson (2011) 51 Cal.4th 989, 1002 [Justice Kennard asserts that “[r]obbery includes the mental element necessary to prove theft, the specific intent to permanently deprive the owner of the property” and then observes: “No one disputes this here.”].)

People v. Bacon (2010) 50 Cal.4th 1082, 1117 [“Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property.”]

People v. Chun (2009) 45 Cal.4th 1172, 1183-1184 [the intent-to-permanently-deprive requirement, although nonstatutory in the limited sense that no California statute uses those words, is based on statute.]

People v. Aguilera (2016) 244 Cal.App.4th 489, 502 [“Here, the jury was properly instructed pursuant to CALCRIM No. 1600 that the requisite intent for robbery existed if the defendant intended ‘to deprive the owner of [the property] permanently….’ ”]

Moreover, consistent with the above case law, the CALCRIM instruction defining robber [CC 1600] requires an intent to permanently deprive the owner.

And, in its February 2016 revision to the Bench Notes for CC 625 the committee reaffirmed the intent to deprive the owner element by revising to Bench Notes to replace intent to “take property by force or fear” with intent to “deprive the owner of the property.”

See also this post: CC 1600 Robbery: Intent To Apply Force Is Not An Element