Duress is not a defense to murder, and will not reduce murder to manslaughter. (People v. Burney (2010) 47 Cal. 4th 203.) However, duress may negate the deliberation or premeditation required for first degree murder, and a modified version of this instruction may be appropriate if warranted by the circumstances of a case. (CCJICH § 3:5, p. 121; See also this post Felony Murder: Applicability Of Duress To Underlying Felony.)
CC 3471, explaining to the jury when a defendant engaged in mutual combat can lawfully use force in self-defense, need not be given when the jury is already being provided standard self defense instructions, such as CC 3470, CC 3472, and CC 3474. As People v. Johnson (2009) 180 Cal. App. 4th 702, explained, CC 3471 merely charges the jury to make a preliminary determination when a defendant engaged in mutual combat can use self-defense; but if the instructions provided already assume that self defense can be used, CC 3471 is superfluous.
The Mathson case makes it clear that if a defendant did not know and could not have reasonably known that his use of Ambien could cause sleep driving, this was involuntary intoxication and the resulting unconsciousness was a complete defense to driving under the influence. (People v. Mathson (2012) 210 Cal. App. 4th 1297.)
In response, CC 3425 was revised. As explained by the Committee, “In People v. Mathson, [] the Court of Appeal concluded that because the instruction’s standard concluding language on reasonable doubt said ‘if, however’ instead of ‘unless,’ it was ‘unnecessarily ambiguous.’ The court also suggested adding an explanation that only involuntary intoxication is the basis for a valid defense.” The committee responded to both of these suggestions with the proposed revisions in the current draft. (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 5.)
However, there is a flaw in the new instruction. The CC states, “[i]f there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious.” No authority is cited in support of this sentence. To the contrary, one of the cases cited as Authority by CC says: “‘Unconsciousness,’ as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist–and the above-stated rule can apply–where the subject physically acts in fact but is not, at the time, conscious of acting.” “ If unconsciousness can be found where the defendant physically acts conscious in fact, then the jury cannot accurately be told that if they find that the defendant acted as if he were conscious, the jury should conclude that the defendant was conscious. Instead of the erroneous sentence, the sentence from the Newton case should be given to the jury.” (CCJICH (2014-2015 §3:5, pp. 110-111.)
People Mathson (2012) 210 Cal. App. 4th 1297, disapproved CC 3425 with respect to the portion that reads, “If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was legally conscious.” The Court of Appeal noted two problems: (1) The instruction is ambiguous because “it could mean that the jury is only to consider whether there is reasonable doubt based on the other evidence if it finds that a defendant acted as if he was not conscious.” (Id. at 1323.) (2) “[I]nstead of telling the jurors they must find the defendant unconscious if they have a reasonable doubt that the defendant conscious, the final sentence directs the jurors to find the defendant not guilty. As we have discussed, in an intoxication case, a defendant who was unconscious must be found not guilty only if the intoxication was involuntary. A defendant who was unconscious may still be found guilty if the intoxication was voluntary. Because the last sentence compels the jury to reach a not guilty verdict instead of compelling a finding regarding consciousness, that sentence is potentially confusing.” (Ibid.)
Failure to prevent a crime is not enough to make a person an aider and mere knowledge that another is going to commit a crime is not enough to make a person an aider. “Neither his mere presence at the scene of the crime nor his failure, through fear, to prevent a crime establishes, without more, that an accused was an abettor.” (People v. Boyd (1990) 222 Cal. App. 3d 541, 556-557.) “Thus, we conclude that the weight of authority and sound law require proof than an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Berman (1984) 35 Cal. 3d 547, 560.)
Thus, the jury must be told: preferably by instruction, but by argument if necessary–that:
(1) Failure to prevent a crime does not establish, without more, that the defendant is an aider and abettor.
(2) Mere knowledge of the purpose of the perpetrator does not establish that the defendant is an aider and abettor.
People v. Favor (2012) 54 Cal. 4th 868, 879-880, held that when applying the natural and probable consequences doctrine to a premeditation allegation under PC 664(a), the jury must initially find that an aider and abettor committed an attempted murder. The jury then must determine if the attempted murder was willful, deliberate, and premeditated. Therefore, there is no requirement that the aider and abettor reasonably foresaw an attempted premeditated murder. Attempted murder need only be a reasonably foreseeable consequence of the crime aided and abetted, and the attempted murder itself was committed willfully, deliberately, and with premeditation.
In People v. Battle (2011) 198 Cal. App. 4th 50, 67, the defense challenged CC 401 because it “does not allow for the withdrawal defense if the defendant attempts to notify the other participants but such notification is impossible.” The Court of Appeal rejected the challenge: “This argument is without merit because the instruction properly states the law–that is, (1) the aider and abettor must notify everyone else he knows is involved in the commission of the crime that he is no longer participating and (2) that notification must be made early enough to prevent the commission of the crime.” (Ibid.)
People v. Samaniego held that a portion of CC 400 was incorrect because it instructed the jury that “[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” (People v. Samaniego (2009) 172 Cal. App. 4th 1148.)
CC 400 was erroneous because it failed to inform the jury than an aider and abettor can be guilty of a lesser crime than the actual perpetrator. In the context of the Samaniego case, involving aiding and abetting a murder, “an aider and abettor’s guilt may . . .be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.” (Id at 1164.) Samaniego concluded that this portion of CC 400, “while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.” (Id. at 1165.)
In response to the Samaniego case, in April, 2010, CC 400 was revised. “The word ‘equally’ was deleted from the paragraph beginning: A person is [equally] guilty. . .’ and an explanatory bench note added: ‘An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state.’” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)
People v. Canizalez held that, in the context of the natural and probable consequences doctrine, it was proper to instruct the jury under CC 403 that the aider and abettor was equally guilty of the crime of which the perpetrator is guilty. (People v. Canizalez (2011) 197 Cal. App. 4th 832.)
People v. Canizalez held that giving CC 400 with the “equally guilty” language was harmless error.
To convict a defendant of multiple sex crimes that are not distinguished: the jury must find 3 prerequisites “‘We see no constitutional impediment to allowing a jury, so instructed to find a defendant guilty of more than one indistinguishable act, providing. . .three minimum prerequisites. . .are satisfied.’ [Citation.] Those prerequisites include generic evidence describing “(1) the kind of acts committed, (2) the number of acts committed with sufficient certainty to support the alleged counts, and (3) the general time period in which the acts occurred.” (People v. Fernandez (2013) 216 Cal. App. 4th 540, quoting People v. Jones (1990) 51 Cal. 3d 294, 321.)