All posts by jpadmin

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Escape: Merely Breaching Barrier not Sufficient

Justice Werdegar’s concurring opinion in People v. Bailey (2012) 54 Cal. 4th 740, 757, urged the committee to revise the jury instructions for escapes to make clear that an inmate does not commit escape merely by breaching a barrier enclosing a “designated area” of a prison or jail. (Id. at 757.)

 

If a defendant breaches the bars of his cell or another internal barrier, attempted escape is the proper charge. For attempted escape, the jury must find that the defendant acted with specific intent to escape. (See CC 460.)

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Definition of “Sharp Instrument”

People v. Hayes (2009) 171 Cal. App. 4th 549, commented on CC 2745’s Bench Notes reference to People v. Custodia (1999) 73 Cal. App. 4th 807, 810-81, to define “sharp instrument.” Hayes concluded that the proper definition of “sharp instrument” which should be given to the jury in these types of cases is that “[a] sharp instrument is an instrument that is sharp and that can be used to inflict injury and that is not necessary for the inmate to have in his possession.” (Hayes, supra, at 560.) In response to Hayes, the CC Bench note deleted its citation to Custodia and now no longer defines “sharp instrument.”

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Lawful Performance: Custodial Officer- -Use of “Reasonable” Force

People v. Gutierrez (2009) 174 Cal. App. 4th 515, identified the following problem with CC 2671:

 

Read literally, [CC 2671] authorizes a custodial officer to use reasonable force in four situations- -“to restrain a person, to overcome resistance, to prevent escape, or in self-defense”- -but erroneously limits to the first situation alone not only the prohibition against the defendant’s use of force or any weapon to  resist reasonable force but also the authorization of the defendant’s use of reasonable force to defend against unreasonable or excessive force.

 

The CJ instruction itself does not contain a provision dealing with the defendant using reasonable force to defend, but a separate CJ instruction does contain a self-defense provision. The CJ self-defense provision, unlike the version of CC 2671 disapproved in Gutierrez, does state that a defendant is allowed to use reasonable force to defend in every situation where an officer is using unreasonable force. (CJ 9.28.)

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Theft by False Pretenses: General Theft Instruction Is Improper

It is error not to give CC 1804, which covers theft by false pretenses, and to simply give CC 1800, the general instruction on theft by larceny. If the theory is a defendant committed a fraud, such as faking an accident, to acquire medical services and damages, then the proper instruction is one that covers theft by false pretenses. (See People v. Beaver (2010) 186 Cal. App. 4th 107, 122-124.)

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The Defendant Has No Burden Of Proof Re: Consent

The Related Issues to CC 1700 state that “consent by the owner or occupant of property may constitute a defense to burglary.” However, no instruction is provided for this purpose. The Court of Appeal in People v. Sherow (2011) 196 Cal. App. 4th 1296, disapproved a consent instruction put together by a trial judge because the judge incorrectly stated that the defendant had the burden of proving consent by a preponderance of the evidence. Sherow held that the burden was on the defendant to only raise a reasonable doubt regarding consent, but did not otherwise disapprove of the judge’s instruction. (Id. at 1309.) The judge’s instruction given in Sherow, modified to correctly allocate the burden of proof, may be used to instruct on consent in this context:

 

The defendant is not guilty of burglary if the occupant of the building consented to the defendant’s entry into the building.

 

In order to establish this defense, the defendant must raise a reasonable doubt regarding all of the following:

 

1. Prior to the defendant’s entry into the building, the occupant expressly gave to the defendant the occupant’s permission for the defendant to enter the building:

 

2. At the time that the occupant gave his or her permission, the occupant knew that the defendant intended to enter the building for the purpose either of committing a theft or selling stolen property; and

 

3. Prior to the defendant’s entry into the building, the defendant knew that the occupant was aware of the defendant’s illegal intention. (Id. at 1303.)

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Failure To Address Standard Of Proof

The modified instruction in Villatoro provided as follows:

 

The People presented evidence that the defendant committed the crime of rape as alleged in counts 2,4,7,9,12, and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes. [¶] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge. (People v. Villatoro (2012) 54 Cal. 4th 1152, 1167-1168.)

 

The court in Villatoro stressed that the trial court should use its discretion under EC § 352 to determine whether the other charged offenses are dissimilar enough, or so remote or unconnected to each other, that admission of them for propensity evidence would be too prejudicial. (Id. at 1167.) It is particularly inappropriate for the court to characterize a prior attempted kidnapping conviction as a prior “sexual offense” under EC § 1108. Courts also should not permit the jury to use sexual offense propensity evidence to find propensity to commit non-sexual offenses. (People v. Jandres (2014) 226 Cal. App. 4th 340, 358-359.)

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Instruction on Necessary Intent to Commit the Act without Consent of the Victim

People v. Dillon (2009) 174 Cal. App. 4th 1367, upheld a conviction using CC 890 in conjunction with CC 1045 dealing with the target offense of sexual penetration by force or fear. However, in 2010, when the same defendant in the Dillon case filed a petition for writ of habeas corpus in a federal court, the United States District Court held that a portion of CC 890 was invalid when the target offense is assault with intent to commit sexual penetration because neither CC 890 nor CC 1045 inform a jury that the defendant must have the specific intent to commit the act without the consent of the victim. (Hall v. Cullen (N.D. 2010) 2010 WL 2991663, 2010 U.S. Dist. LEXIS 89946.)

 

Of course, Hall v. Cullen is a federal district court case that is not controlling on California state court decisions as to which jury instructions to use. (See People v. Zapien (1993) 4 Cal. 4th 929, 989 [“Decisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.”].) However, courts should use extreme caution in instructing the jury with CC 890 when the target crime requires specific intent. Although not required under People v. Dillon, it will probably be a good idea to go ahead and inform the jury regarding specific intent, e.g. “The offense of assault with the intent to commit sexual penetration requires that the defendant intend to commit the sexual penetration without the victim’s consent.”

 

The Dillon court recognized that CC 890 does not expressly provide that the assault must be non-consensual. Although the court found that other instructions sufficiently address this problem, this CC itself should be modified to expressly provide:

 

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.

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Touching Must be Done in Lewd and Lascivious Manner

People v. Cellar (2012) 208 Cal. App. 4th 1067, 1071, noted that CC 1120 improperly provides that the “touching need not be done in a lewd or sexual manner.” This language could be interpreted by a jury to negate the requirement in CC 1120 that the touching be done in a lewd or lascivious manner. (Ibid.) The Court of Appeal urged “that the Judicial Council’s Advisory Committee on Criminal Jury Instructions reconsider the language of this sentence and propose new language that simply states that the touching need not be made to an intimate part of the victim’s body, so long as it is done with the required intent.”

 

However, as of August, 2014 this defect has not been corrected.

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Pandering: Clarification of Elements

In February, 2012, the CC Committee revised CC 1151 explaining that it does not matter whether the “prostitute” was a prostitute already or whether he or she was an undercover police officer.

 

In People v. Zambia (2011) 51 Cal. 4th 965, Supreme Court Justice, and former committee chair, Carol A. Corrigan answered the long open questions of (1) whether specific intent is required for the crime of pandering and (2) whether one can encourage another person to become a prostitute when one believes that the target in question is already a prostitute. The answer to both questions is now yes. The committee revised CC No. 1151, Pandering, accordingly. It updated the instruction further to reflect the ruling in People v. Dixon (2011) 191 Cal. App. 4th 1154, that pandering requires services procured for someone other than the defendant. The committee added citations to both cases to the bench notes. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 28, 2012, p. 3.)

 

In the August, 2012, revision, the committee stated that “In response to a comment from the collective appellate defense projects, the committee revised the definition of ‘pandering’ and ‘prostitution’ in [CC 1151], Pandering, to clarify how the act of pandering must be with ‘someone other than the defendant,’ under People v. Dixon (2011) 191 Cal. App. 4th 1154, 1159-60. The previous revision had embedded this language in the definition of “prostitute” and the commentator noted that it would be more clear if embedded in the definition of ‘pandering.’ The committee agreed.”

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Rape of Intoxicated Victim: Degree of Intoxication

People v. Smith (2011) 191 Cal. App. 4th 199, 204-05, held that CC 1002 correctly incorporates the law of rape of an intoxicated woman as set forth in People v. Giardino (2000) 82 Cal. App. 4th 454, 472. “The instruction sufficiently describes the degree of intoxication required for the crime of rape of an intoxicated woman by stating that the woman must be “so intoxicated that she cannot give legal consent.” The other language of the instruction that provides that the woman must be “able to understand and weigh the physical nature of the act, its moral character, and probable consequences” sets a sufficient standard for intoxication. A woman who exercises poor judgment is still exercising judgment in deciding whether to have sexual intercourse “so long as the woman is able to understand and weigh the physical nature of the act, its moral character, and probable consequences.”