CC 330: “Should Consider” vs. “Consider”
October 27th, 2020
CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old. Compare Paragraph 2: In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development. [Emphasis […]
Tags: CC 330, Evidence and Witnesses, Jury Instruction Language, Sample Instructions
Propriety of Pinpoint Instructions Which Elaborate and Clarify Other Instructions
October 25th, 2020
“A trial court must instruct on the law applicable to the facts of the case.” (People v. Mincey (1992) 2 Cal.4th 408, 437.) “[L]legally correct and factually warranted pinpoint instructions designed to elaborate and clarify other instructions should be delivered upon request.” (People v. Hughes (2002) 27 Cal.4th 287, 362 italics omitted; People v. Woods […]
Tags: Defense Theory Instructions, PG V(B) Requested Instructions
The Huge Impact of A Tiny Two-Letter Word
October 15th, 2020
In this March 10, 2020 post FORECITE discussed the CALCRIM instructions which define great bodily injury as a “significant or substantial physical injury … that is greater than minor or moderate harm.” The post suggested, in reliance on People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 that — as argued by the prosecutor in […]
Tags: CC 1300, CC 1402, CC 1501, CC 1530, CC 1551, CC 2501, CC 2503, CC 2514, CC 2578, CC 2720, CC 2721, CC 2745, CC 2746, CC 2747, CC 3130, CC 3145, CC 3149, CC 3150, CC 3160, CC 3161, CC 3162, CC 3163, CC 3177, CC 3477, CC 505, CC 508, CC 511, CC 524, CC 525, CC 571, CC 580, CC 581, CC 582, CC 590, CC 592, CC 604, CC 810, CC 820, CC 860, CC 862, CC 863, CC 875, CC 970, CC 982, CC 983, GBI, Sample Instructions
Overview of Latest CALCRIM Revisions
October 13th, 2020
Effective September 25, 2020 the following changes to the criminal jury instructions were approved: Revisions to CALCRIM Nos. 105, 202, 226, 358, 505, 508, 511, 524, 525, 540B, 563, 571,580, 581, 582, 590, 592, 604, 766, 767, 810, 820, 860, 862, 863, 875, 970, 982, 983, 1071, 1080, 1124, 1128, 1191B, 1201, 1202, 1300, 1402, […]
Tags: CC Revisions
CALCRIM’s Failure to Define the Term “Actual Killer” Erroneously Allows the Jurors to Conclude That an Aider and Abettor Can Be an “Actual Killer”
October 10th, 2020
CC 703 requires the jury to find the Enmund/Tison requirements only if they find that the defendant was not “the actual killer….” However, the term “actual killer” is not defined in CC 703 or anywhere else in the CALCRIM instructions. This is a critical omission because the legislature did not intend the term “actual […]
Tags: CC 540B, CC 540C, CC 703, Felony Murder Special Circumstance, Special Circumstances, Tison/Banks
CALCRIM Committee Acknowledges “Tension” Between Its Death Penalty Instructions and the Federal Constitution
October 8th, 2020
In the September 2020 revisions to the Bench Notes for CC 766 and CC 767 deleted the following optional sentence: “In making your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.” This sentence, which is based on the holding in […]
Tags: CC 766, CC 767, Death Penalty
CALCRIM 730 Omits The Required Tison/Enmund Elements
October 5th, 2020
Under Enmund v. Florida (1982) 458 U.S. 782, 797 the federal Constitution requires an aider and abettor to capital murder to have the intent to kill, and California’s death penalty law permits the jury to find the felony-murder special-circumstance allegation true without finding an intent to kill. But, in Tison v. Arizona (1987) 481 U.S. […]
Tags: CC 540B, CC 540C, CC 703, CC 730, Felony Murder Special Circumstance, Special Circumstances, Tison/Banks
Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Mental Impairment
September 17th, 2020
PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.) […]
Tags: CC 3428, CC 540B, CC 540C, CC 703, CC 730, Felony Murder Special Circumstance, Mens Rea: Knowledge, Mental Impairment, Sample Instructions, Special Circumstances, Tison/Banks
Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Intoxication
September 12th, 2020
PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.) […]
Tags: CC 3426, CC 540B, CC 540C, CC 625, CC 703, CC 730, Felony Murder, Mens Rea: Knowledge, Mental Impairment, Sample Instructions, Special Circumstances, Tison/Banks
Assault with a Deadly Weapon: Is There Ever a Need or Reason to Instruct on “Inherently” Deadly Weapons?
September 10th, 2020
In People v. Aledamat (2019) 8 Cal.5th 1, 15-16 the CSC cautioned judges regarding use of the term “inherently deadly weapon” with regard to the substantive offense of assault with a deadly weapon and enhancement allegations regarding deadly weapons: As this case demonstrates, the standard instructions on assault with a deadly weapon and use of […]
