All posts by jpadmin

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Sex Crimes: Consent And Withdrawal Of Consent: CC’s 2013 Revision

The committee revised the final bracketed paragraph on “Reasonable Belief in Consent” by changing the first sentence to read thus:

The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse].

 

The bracketed language is optional, to be given only when necessary. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, pp. 3-4.)

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Robbery: Defense Theory That Force Was Incidental

The question whether a crime was robbery or grand theft-person frequently arises. The Related Issues section cites a case noting that the force required for robbery must be more than the incidental touching necessary to take the property. (People v. Garcia (1996) 45 Cal. App. 4th 1242.) Where the issue of whether the force used qualified as a robbery or only qualified as grand theft-person, defense counsel should draft an instruction explicitly explaining this difference. If there is any substantial evidence presenting this issue, the court should give an instruction on that difference. (People v. Panah (2005) 35 Cal. 4th 395, 484.)

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When Is A Possession Of Property Owned By Another A Victim Of Robbery

People v. Scott (2009) 45 Cal. 4th 743, 751-757, discussed the language in CC 1600 dealing with constructive possession of property by store employees. Scott disapproved the Court of Appeal’s opinion in People v. Frazer (2003) 106 Cal. App. 4th 1105, to the extent that Frazer found that courts should adopt a narrow view regarding what types of victims can be in constructive possession of property when the victims are employees and property is taken from their employer in robbery cases. (Ibid.) Scott observed that CC, unlike the CJ equivalent, provides a pinpoint instruction to these situation which is consistent with Frazer. (Ibid.)

 

The portion of CC 1600 referenced by Scott provides:

 

If the facts show that the employee was a representative of the owner of the property and the employee expressly or implicitly had authority over the property, then that employee may be robbed if property of the store or business is taken by force or fear.

 

Despite this portion of CC 1600 being based on Frazer, and Scott’s disapproval of Frazer, the CC instruction still appears to correctly state the law in contexts other than ones dealing with employees, and Scott did not indicate otherwise. In light of Scott, however, courts should not rely on Frazer to further modify or narrow the definition of possession and control for purposes of robbery.

 

People v. Bradford (2010) 187 Cal. App. 4th 1345, 1352-53, upheld CC 1600 in the context of advising the jury when persons had sufficient relation with the owners of property to constitute robbery victims:

 

The version of [CC1600] that was given to the jury in this case did not explicitly advise the jury that a “special relationship” between the guards and [the business that owned the property] was necessary, but it did require a determination that the guards were “representatives” of the store with express or implicit authority over the property. We agree with the Attorney General that more was required to prove the guards were ‘representatives’ of [the business that owned the property] than would have been needed to prove that they had a “special relationship” with that business. The instruction given was, if anything, more stringent than the requirements recognized in People v. Scott, 45 Cal 4th 743, and any defect inured to appellant’s benefit.

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Reasonableness Of Victim’s Fear: Request For Instruction As Defense Theory

People v. Morehead (2011) 191 Cal. App. 4th 765, held that CC 1600 was not invalid for failing to instruct the jury that a robbery victim’s fear must be reasonable.

Morehead simply held that the court does not have a sua sponte duty to instruct the jury that a robbery victim’s fear must be reasonable. Morehead itself cites the authority requiring that such a victim’s fear must be reasonable. (Id. at 772.) However, when appropriate, the defense should consider requesting such an instruction.

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No Requirement That The Movement Must “Substantially Increase Risk Of Harm” To The Victim

The Authority section of CC 1203 also states “Movement Must Substantially Increase Risk of Harm to Victim,” citing People v. Dominguez (2009) 39 Cal. 4th 1141.

However, the Legislature in 1997 rewrote the aggravated kidnapping statute to delete the requirement that the movement must substantially increase the risk of injury to the victim over and above the risk inherent in the commission of the underlying crime. (People v. Robertson (2012) 208 Cal. App. 4th 965, 980-82.)

The current version of the aggravated kidnapping statute, PC § 209(b)(2), requires that the prosecution prove beyond a reasonable doubt that a defendant’s movement of the victim “increased the risk of harm to the victim over and above that which is inherent in the sexual offense itself. [But], section 209, subdivision (b)(2) does not require proof that the movement substantially increased the risk of harm to the victim.” (Ibid.)

Thus, Dominguez is not controlling authority on this issue because the kidnapping in Dominguez occurred before the operative date of the 1997 amendment, and hence Dominguez did not apply the amended version of the law. (Ibid.)

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Imperfect Self Defense Not Applicable To Shooting At Inhabited House Or Occupied Vehicle

Self Defense and defense of others is applicable to a charge under PC § 246 alleging that the defendant shot at an inhabited house or occupied vehicle. (See CC 965, Bench Notes [judge has a sua sponte duty to instruct].)  However, unreasonable self defense is not applicable. (People v. Rodarte (2014) 223 Cal. App. 4th 1158, 1171.)

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Stalking Instruction Upheld But Has Possible Problem

The language of CC 1301 was upheld against several challenges in People v. Ibarra (2007) 156 Cal. App. 4th 1174, 1195-1197. In Ibarra, the Court of Appeal also rejected a request for a unanimity instruction noting that stalking always involves a continuous course of conduct over a period of time. (Id. at 1198.)

The Court of Appeal in People v. McPheeters (2013) 218 Cal. App. 4th 124, 131-141, refused to reverse a conviction based on several challenges to CC 1301. But, the appellate court indicated that there are possible problems with the instruction regarding knowledge that a person is victim’s immediate family member, and defendant’s intent that his comments to a third party be conveyed to the victim. (Ibid.)

McPheeters, 218 Cal. App. 4th at 134, described the defense position as follows:

“Defendant’s position is that the challenged instruction was not correct in law because the statute must be interpreted to require knowledge that a person is the victim’s immediate family member within the meaning of the [Penal Code] section 649.9. subdivision (1), before any statements or conduct towards that person can qualify as a credible threat to the victim. According to defendant, statements made to a person other than the victim constitute a credible threat within the meaning of [Penal Code] section 649.9, subdivision (g), only if the defendant knows that the person is an immediate family member of the victim. Absent such knowledge, defendant argues, an accused could not harbor the specific intent to place the victim in reasonable fear for the safety of that family member. Defendant contends this violates [Penal Code] section 20, which requires that “‘[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.’ (§ 20.) ” (McPheeters, 218 Cal. App. 4th at 134.)

However, the court did not resolve this contention.

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Due Process Challenge To Use Of Domestic Violence As Character Evidence

Defense counsel should challenge the admission of domestic violence evidence as character evidence on federal due process grounds. However, even if such evidence is admitted, defense counsel should challenge this CC with respect to the use of such evidence. California case law notwithstanding, this instruction is unintelligible and unconstitutionally reduces the burden of proof. The CC tells the jury that if they find that the prior domestic violence has been proved to a preponderance, the may then use that evidence as part of the determination of whether the defendant is guilty. This mixing of the burden of proof between preponderance and proof beyond a reasonable doubt is certain to confuse the jury. Morever, the CC gives no guidance on how to use proof of the character of the defendant. May that evidence be used to fill any gap in the prosecution’s evidence?  May it be used to prove identity?  Intent? Age of the victim?  The CC gives the jury no direction at all on this critical point, and thus essentially permits the jury to use this character evidence in any way they want, unguided by judicial direction. This surely violates due process and defense counsel should so argue. (See CC 852, Authority indicating that People v. Cottone (2013) 57 Cal. 4th 269, 293, fn. 156, held there was no sua sponte duty to provide the jury with CC 852.) CC  853’s Bench Notes do not state that the court has a sua sponte duty, but do state that the court must give this instruction upon request. (CCJICH § 5.2, p. 519.)

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Use Of Other Counts In The Charges As Propensity Evidence

People v. Villatoro (2012) 54 Cal. 4th 1152, held that evidence of other sex crimes pursuant to EC § 1108 may be admitted even when the evidence consists of other sex crimes alleged as counts in the charging document. EC § 1108 and EC § 1109, which is the underlying statute for CC 852, are substantially identical and thus it may be permissible to use CC 852 regarding evidence of other crimes alleged as counts in the charging instrument.

However, if other counts are used for propensity, it is important that the jury not be instructed that the other counts can be proved by a mere preponderance of the evidence. (Id. at 1167-1168.) Using CC 852 unaltered when the only evidence of domestic violence consists of other counts in the charging document would confuse the jury because they would have to perform mental gymnastics to consider the evidence for purposes of using a preponderance of evidence standard but only convict the defendant of the counts if convinced beyond a reasonable doubt. In sum, CC 852 should be modified to instruct the jury that the other counts must be proved beyond a reasonable doubt.

Caveat: In Villatoro, the court 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 1163.)