It is a defendant’s entire course of conduct, including conduct and statements to third parties that foreseeably a victim may be told, that is relevant to establishing a credible threat and not necessarily any particular intent that the comments be conveyed to the victim. (People v. Norman (1999) 75 Cal. App. 4th 1234.)
CC 330 parallels CJ 2.20.1 and the constitutionality of that instruction has been upheld by the courts. (People v. McCoy (2005) 133 Cal. App. 4th 974.)
People v. Smith (2011) 191 Cal. App. 4th 199.
The April 2011 revision of CC 1111 was explained by the Advisory Committee on Criminal Jury Instructions: “In a very recent case, People v. Soto (2011) 51 Cal. 4th 229, the Supreme Court held that a victim’s consent is not a defense to committing either lewd or aggravated lewd acts on a child under the age of 14. The committee revised [CC 1110] and [CC 1111], Lewd or Lascivious Act: Child Under 14 Years, Lewd or Lascivious Act: By Force or Fear accordingly.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 29, 2011, p. 4.)
It is not necessary to instruct on defendant’s intent to have a third person convey a threat to the victim, or that the defendant must know that the person with whom he has spoken is the victim’s “immediate family,” (People v. McPheeters (2013) 218 Cal. App. 4th 124.) when the prosecution’s theory is that the defendant’s statement was part of a pattern of conduct designed to threaten the victim.
People v. Anderson (2011) 51 Cal. 4th 989, 998-99, held, “the intent element of robbery does not include an intent to apply force against the victim or to cause the victim to feel fear. It is robbery if the defendant committed a forcible act against the victim motivated by the intent to steal, even if the defendant did not also intend for the victim to experience force or fear.” Ibid. The defendant argued that he did not intend to apply force to the victim and therefore the trial court erred in failing to provide a sua sponte instruction on accident where defendant attempted to negate the intent element of the crime. The California Supreme Court held that CC 1600 provides a complete definition of the crime and since accident concerning the use of force added a nonexistent element of intent to the offense of robbery, a defense instruction on accident should not be given even with a defense request.
On April 23, 2010, CC 1301 was revised to delete element 4 which required the prosecution to prove that “The defendant’s course of conduct was not constitutionally protected.” According to the CC Committee,“whether conduct is constitutionally protected is not an issue for the jury to decide.” CC 1301 was further revised to instruct the jurors that “A person is not guilty of stalking if (his/her) conduct is constitutionally protected activity,“ and to allow the court to fill in what type of activity constitutes “constitutionally protected activity.”
People v. Eid (2010) 187 Cal. App. 4th 859, 878, concluded that CC 1202 fails to clearly inform the jury that, to prove a defendant guilty of kidnapping for ransom, the People must prove, inter alia, (1) that the victim did not consent to the confinement, concealment, or other predicate act, and (2) where applicable, that the defendant did not actually and reasonably believe that the victim consented to the predicate act. CC 1202 also fails to instruct the jury on the corresponding ‘defenses’–I.e., that the defendant is not guilty if the primary victim consented to the predicate act of if the defendant reasonably believed the victim consented, and that the People still bear the burden of proving the elements that these defenses negate. [emphasis in original]
If the defendant actually believed that the firearm he or she discharged was unloaded, the defendant has not violated this statute. (People v. Robertson (2004) 34 Cal. 4th 156.) However, Robertson was overruled in People v. Chun (2009) 45 Cal. 4th 1172, as follows:
To avoid the anomaly of putting a person who merely intends to frighten the victim in a worse legal position than the person who actually intended to shoot at the victim, and the difficult question of whether and how the jury should decide questions of merger, we need to reconsider our holdings in Robertson, supra, 34 Cal. 4th 156, and Randle, supra, 35 Cal. 4th 987. When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An “assaultive” felony is one that involves a threat of immediate violent injury. (See People v. Chance (2008) 44 Cal. 4th 1164, 1167-1168 [81 Cal.Rptr.3d 723].) In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. For example, in People v. Smith, supra, 35 Cal.3d at page 806, the court noted that child abuse under section 273a “includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” Looking to the facts before it, the court decided the offense was “of the assaultive variety,” and therefore merged. (Smith, supra, 35 Cal.3d at pp. 806-807.) It reserved the question whether the nonassaultive variety would merge. (Id. at p. 808, fn. 7.) Under the approach we now adopt, both varieties would merge. This approach both avoids the necessity of consulting facts that might be disputed and extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive.
If the witness is an in-custody informant, CC 336 should be given upon request, as well as CC 337, which cautions jurors not to consider the reason the witness is in custody. Regarding CC 337, the Court of Appeal has held this instruction should not be given unless the shackles are visible to the jury, and, when relating to a defendant, it should be given only when requested by the defense. (People v. Cortes (2011) 192 Cal. App. 4th 873, 915.)