CC 763, which lists those factors that can be considered in the penalty phase of death penalty trials, was revised on December 9, 2008. As explained by the Advisory Committee on Criminal Jury Instructions in its report to the Judicial Council, CC 763 “was revised to clarify that ‘violent criminal activity’ only includes crimes directed at a person, not at animals or personal property.” (Advisory Committee on Criminal Jury Instructions Report (Oct. 10, 2008), at p. 1.) Accordingly, CC 763 was amended to state that “Violent criminal activity is criminal activity involving the unlawful use, or attempt to use, or direct or implied threat to use force or violence against a person.” The revision was a result of the opinion in People v. Doolin (2009) 45 Cal. 4th 390, which excluded force against animals as an aggravating factor.
All posts by jpadmin
Gang Special Circumstance
People v. Carr (2010) 190 Cal. App. 4th 475, 486, held that CC 736’s “inclusion of a knowledge element in the special circumstances of killing on behalf of a gang is not legally incorrect even if the statute itself does not expressly require its inclusion because it is constitutionally required.” Carr did note, however, that the CJ equivalent’s Comments on its instruction were wrong: CJ 8.81.22’s Comments stated that “Since that same language is found in Penal Code § 190.2(a)(22), the committee has included the pertinent elements of that section into its definition of the essential elements of this special circumstance allegation.” (Ibid.) As Carr explained,“section 190.22, subdivision (a)(22), does not incorporate subdivision (a) of section 186.22, which defines the substantive criminal offense of active gang participation; instead, it incorporates subdivision (f) of section 186.22, the subdivision that defines the term ‘criminal street gang.’” (Ibid.)
Malice and Voluntary Intoxication
People v. Turk (2008) 164 Cal. App. 4th 1361, 1382, rejected the defendant’s argument that the instruction gave insufficient guidance that malice aforethought and intent to kill are the same thing. The jury was instructed under CC 520 in defining murder that, “[t]he defendant acted with express malice if he unlawfully intended to kill.” (Ibid.) When combined with CC 520, CC 625 adequately instructed that the jury could consider evidence of the defendant’s voluntary intoxication in deciding whether he had acted “with an intent to kill” provided sufficient guidance. (Id. at 1882-83.)
Involuntary Manslaughter: Existence of Legal Duty As Jury Question
The Bench Notes state that the determination of whether a defendant has a legal duty is one to be decided by the judge, not the jury. However, this conclusion violates United States Supreme Court precedents which require that every element of an enhancement must be proved beyond a reasonable doubt and found true by a jury or admitted by the defendant. (See People v. Blakely (2000) 23 Cal. 4th 82, 94-100.) Thus, the issue of whether the defendant has a legal duty should be decided by the jury. The portion of the CC telling the jury that the defendant does have a legal duty should not be given.
Involuntary Manslaughter and Criminal Negligence
People v. Butler (2010) 187 Cal. App. 4th 998, 1014, upheld CC 580 as follows:
The trial court’s adherence to the formulation of the instruction in [CC 580] adequately informed the jury of the criminal negligence standard applicable to all three forms of involuntary manslaughter. As [previously stated by the Court of Appeal] ‘an act is criminally negligent when a man of ordinary prudence would foresee that the act would cause a high degree of risk or great bodily harm.’ This is essentially the same standard provided to the jury by the trial court; i.e., the defendant committed involuntary manslaughter if the ‘defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed.’
Provocation And Premeditation/Deliberation
In People v. Hernandez (2010) 183 Cal. App. 4th 1327, the defendant argued that CC 522 failed to specifically state that provocation can negate premeditation and deliberation necessary for first degree murder. The reviewing court acknowledged that CJ 8.73 did specifically state that premeditation and deliberation can be negated by provocation. However, CC 522 stated that provocation “may reduce a murder from first degree to second degree, and CC 521, the general instruction on murder, stated that a decision to kill made rashly, impulsively, or without consideration is not deliberate and premeditated.” (Id. at 1333.) Hernandez concluded that when CC 521 and CC 522 are both given, jurors would adequately understand that “the existence of provocation can support the absence of premeditation and deliberation.” (Id. at 1334.)
The defendant also argued that CC 522, telling the jury that the “weight and significance” of the evidence of provocation was for them to decide, could allow the jury to arbitrarily reject the evidence of provocation. Hernandez found that there was no reasonable likelihood that a jury would interpret the instruction in this manner: the instruction here merely correctly told the jury that it should decide the strength and importance of the evidence of provocation in assessing whether a reasonable doubt existed that the offense was premeditated. (Ibid.)
The defendant in Hernandez also argued that CC 522 was invalid because, unlike CJ 8.73, it did not tell the jury that provocation which is insufficient to reduce murder to manslaughter could be enough to reduce first degree murder to murder in the second degree. Hernandez rejected this claim because CC 522 tells the jury it can consider provocation for both second degree murder and manslaughter, “There is nothing in the instruction that suggests the jury might have failed to fully consider the provocation evidence for second degree murder based on a rejection of the evidence of manslaughter.” (Id. at 1333.) Strategy Note: Notwithstanding Hernandez, counsel should be alert on this issue, and should request a clarification of CC 522 to make it explicit that provocation can preclude premeditation and deliberation.
Provocation Does Not Require Single Incident Qualifying As Provocation
CC 511 states that sufficient provocation may occur over a short period of time or over a long period of time. Thus, provocation may exist even though there was not a single incident qualifying as sufficient provocation. For example, malice may be negated by a long period of minor events, culminating in sufficient provocation. (People v. Le (2007) 158 Cal. App. 4th 516, 525; People v. Wharton (1991) 53 Cal. 3d 522, 569; People v. Berry (1976) 18 Cal. 3d 509; People v. Botchers (1958) 50 Cal. 2d 321.)
Self Defense: Applicability When Defense Relies On Theory Of Accident
People v. Villanueva (2008) 169 Cal. App.4th 41, 51, disagreed with the Related Issues portion of CC 510. Contrary to CC’s interpretation, People v. Curtis (1994) 30 Cal. App. 4th 1337, 1358-1359, did not categorically foreclose self-defense instructions when a defendant claims a killing was accidental. (See also People v. Elize (1990) 71 Cal. App. 4th 605.)
So long as there is substantial evidence supporting a defense, on request of the defense, the court must give an instruction on that defense. (People v. Panah (2005) 35 Cal. 4th 395 [Defendant’s testimony that killing was accidental should not foreclose self-defense instructions if other substantial evidence supports a finding of self-defense].)
Attempted Murder, Kill Zone
Attempted Murder: Aider And Abettor/Provocative Act And Mental State
A bracketed portion of CC 601 is provided when the defendant was not the actual killer which states:
[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or <insert name or description of principal> or both of them acted with that state of mind.]
People v. Gonzalez (2012) 54 Cal. 4th 643, 661, held: “That sentence is a correct statement of the mental state requirements for an attempted murder committed by a defendant and an accomplice. When referred to in the context of defining a first degree provocative act murder, however, the sentence gives the incorrect impression that the defendant can be found to have acted with premeditation and deliberation if either the defendant or an accomplice harbored the mental state.” The bracketed portion should not be given if the theory of the case is that the defendant is guilty as an aider and abettor because of provocative acts. Moreover, the Gonzalez court stressed that if the defendant personally intends to kill and premeditates, the defendant is liable for first degree murder for each killing proximately caused by his or her acts. On the other hand, when malice is only implied from the defendant’s conduct, there is no first degree murder. (Id. at 661-662.)
Bottom line: “. . .[B]oth the instruction on attempted premeditated murder and first degree murder were correct. An aider and abettor can be found guilty of attempted premeditated murder based on the premeditation of her accomplice, but the same aider and abettor can be found guilty of first degree murder based on her provocative acts only if she premeditated and deliberated the death of the intended victim. The bracketed portion of the instruction discussed above should be given with a clarifying instruction that a defendant can be found guilty of both attempted premeditated murder and first degree provocative act murder if she did in fact premeditate and deliberate.” (Ibid.)
Attempted Murder: Kill Zone Language
People v. Campos (2007) 156 Cal. App. 4th 1228, 1243, upheld instructing the jury with the “kill zone” option of CC 600. However, the Campos court observed that when a jury is instructed on the intent to murder the person whose attempted murder is charged and on express malice, the “kill zone” option is superfluous. Campos concluded that the “kill zone” theory “is not a legal doctrine requiring special jury instructions. It is a reasonable inference the jury may draw in a given case.” (Ibid.)
Campos also noted an ambiguity in the “kill zone” option for CC 600. Although the concluding sentence of the “kill zone” instruction refers to harm “everyone in the kill zone,” the preceding sentence speaks of an intent “to kill anyone within the kill zone.” (Ibid.)