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CC 370 (Motive): Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?

The CSC has suggested that lay jurors will readily understand the subtle distinction between intent – which is an element of many crimes – and motive – which is generally not an element

…[A]lthough malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not an element. ‘Motive, intent, and malice–contrary to appellant’s assumption–are separate and disparate mental states. The words are not synonyms. Their separate definitions were accurate and appropriate.’ [Citation.] Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse (2002) 27 Cal. 4th 469, 503-04.)

However, it is problematic to assume that lay jurors will readily understand that the “reason” a person commits an act is different than his intent which is defined as “the state of a person’s mind that directs his or her actions toward a specific object.” (See “We must bear in mind that the audience for these instructions is not a room of law professors deciphering legal abstractions, but a room of lay jurors reading conflicting terms.” (People v. Maurer (1995) 32 Cal. App. 4th 1121, 1127.)

The legal abstraction advanced by the CSC in Hillhouse is simply not something that jurors can be expected to accurately decipher. Often the defendant’s motive and intent are so intertwined that any technical distinction between the two will not likely be seen or understood by the jurors.

For example, although it concluded that the instructions as a whole were not erroneous, People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140 acknowledged that the “commonsense concept of motive” may create confusion:

Any reason for doing something can rightly be called a motive in common language, including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B….”

Accordingly, due to the danger of juror confusion, CC 370 should not be given.

Moreover, CC 370 is argumentative: (1) it is “aimed at specific evidence” which is properly addressed in argument not in the instructions (see People v. Harris (1989) 47 CA3d 1047, 1098, fn. 31); and (2) it serves as unnecessary and improper judicial comment on the evidence by addressing matters which the prosecution does not need to prove. (See FORECITE PG III(B); F 362 Note 6; F 372 Note 6; F 416.3 Inst 4.)

However, even if the CC 370 is given it should be modified to assure that the jurors will not read CC 370 as conflicting with the intent element(s) of the charge. In this regard sample instructions such as the following could be requested:

Alternative a:

Modify CC 370, ¶ 1, sentence 1, to provide as follows:

The people are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged other than the intent and mental state elements enumerated in Instruction # _______which specifies what the prosecution is required to prove.

Alternative b:

Add to CC 370 when appropriate:

This instruction is not intended to eliminate or reduce the mental state and intent requirements for the charge of ______________ <insert charge with purposeful conduct requirements, e.g., torture [PC ____]; killing for financial gain [PC _____]; torture murder [PC 189]; premeditated and deliberate murder [PC 189], etc.>.

Lesser Included Offenses: Accusatory Pleading Test – Consideration of Evidence from Probable Cause Showing

People v. Ortega (2015) 240 Cal.App.4th 956, 967 held that: “Due process principles of fairness, and defendant’s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, the preliminary hearing testimony identified defendant’s fingers as the only object supporting the forcible sexual penetration charge.”

In so doing the reviewing court rejected the Attorney General’s claim that the probable cause showing is not relevant under the accusatory pleading test:“The evidence adduced at the preliminary hearing must be considered in applying the accusatory pleading test when the specific conduct supporting a holding order establishes that the charged offense necessarily encompasses a lesser offense.” (Ibid, citing People Marshall, supra, 48 Cal.2d at p. 405.)

“The salient point in Marshall—that the specific language in the information could inform the lesser included offense question because the information provided defendant with notice of the lesser included offense—supports our conclusion that the accusatory pleading cannot be examined in isolation. The due process principle that informed Marshall requires that the facts derived from the preliminary hearing be factored into the accusatory pleading analysis.” [emphasis added] (Ortega, supra at 968.)

The Ortega court also relied on mutual fairness concerns expressed in People v. Birks, supra, 19 Cal.4th 108, 128:

[W]hether sexual battery is a lesser included offense of forcible sexual penetration in a case involving digital penetration should not hinge on whether the prosecutor chooses to mention fingers in the charging document. Here, the prosecutor was bound by the preliminary hearing testimony to prove that defendant digitally penetrated Doe’s vagina. Given that constraint on proof, felony sexual battery was necessarily a lesser included offense of forcible sexual penetration, and it would be unjust to allow the prosecutor, by controlling the language in the charging document, to also control whether the jury considers that lesser offense. [Citation to Birks.]

The Ortega court found prejudicial error under People v. Watson (1956) 46 Cal.2d 818, 836 and reversed the judgement.

CC Revision Note: A cite to Ortega was added to the CC 1045 Bench Notes in August 2016.

Motive Instruction: Clarification Of Problematic Burden Shifting Language

As revised in August 2016, CALCRIM 370 provides as follows:

The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.

This instruction contains two problematic passages which unconstitutionally shift the burden of proof.

First, CALCRIM 370 erroneously implies that absence of motive may only be considered if proven by the defendant. A jury instruction is erroneous if it permits the jurors to conclude that the defendant has the burden of proving all or part of a defense theory which negates an element of the charge. (See Carella v. California (1989) 491 US 263, 265-66; Sandstrom v. Montana (1979) 442 US 510, 521-24.)

Second, CALCRIM 370 employs erroneous burden shifting language by implying a defense obligation to “show the defendant is not guilty.” The defendant has absolutely not burden or obligation to present any “affirmative evidence demonstrating a reasonable doubt …” (People v. Hill (1998) 17 C4th 800, 831.) “[T]he jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.)

A sample instruction intended to correct these defects is the following:

Add at end of CC 370:

However, the defendant has no burden to prove (1) that he did not have a motive or (2) that he is not guilty. If the prosecution has failed to prove every element of the charged crime he is not guilty under the law and you must vote to acquit.