CC 703: Felony Murder: Special Circumstance Liability — Factors Re: Major Participant Determination
September 16th, 2016
PC 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137 [95 L. Ed. 2d 127, 107 S. Ct. 1676], “which articulates the constitutional limits on executing felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal. 4th 788, 794.) “Tison and a prior decision on which […]
Tags: CALCRIM Revisions, CC 703, Death Penalty, Felony Murder Special Circumstance, Special Circumstances, Tison/Banks
California Supreme Court Continues to Grant Review in “Kill Zone” Cases
September 14th, 2016
On July 27, 2016 the CSC granted review in yet a another “kill zone” case: People v. Cardona (2016) 246 Cal.App.4th 608, review granted 7/27/2016 (S234660/B261458). Briefing deferred pending decision in People v. Canizales (2014) 229 Cal.App.4th 820, review granted 11/19/2014 (S221958/E054056), which presents the following issue: Was the jury properly instructed on the “kill […]
Tags: Attempted Murder: Kill Zone, CC 600
Is Larcenous Intent an Element of Robbery?
September 12th, 2016
For decades CALJIC 9.40 has relied on the literal language of PC 211 to define the specific intent required for robbery as an intent to permanently deprive the possessor of the property that is taken. However, this definition is erroneous because robbery requires an intent to steal which is defined as an intent to permanently […]
Tags: CALCRIM Revisions, CC 1600, CC 625, Claim of Right, Defense Theory: Mens Rea/Intent, Homicide, Intoxication, Mens Rea: Intent, Robbery
Citation Updates by CALCRIM Committee
September 9th, 2016
In its February 2016 updates the CC committee updated citations on eleven different instructions without changing the language of the instructions. The committee notes suggested that such changes “tend to be uncontroversial.” To view these change see — https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3
Tags: CC 1300, CC 1400, CC 1401, CC 1863, CC 207, CC 2542, CC 334, CC 335, CC 361, CC 736, CC Revisions
CC 548: Murder Alternative Theories — 2016 Revision
September 7th, 2016
Prior to 2016 CC 548 simply informed the jurors that: “You do not need to agree on the same theory [of murder].” However, in People v. Sanchez (2013) 221 Cal.App.4th 1012, 1025 recognized that giving such an instruction may be reversible error if the different theories of guilt result in different degrees of guilt: Unanimity […]
Tags: CALCRIM Revisions, CC 548, Homicide, Juror Unanimity (Duplicity), Murder
CC 207: Proof Need Not Show Actual Date: Exception When Evidence Focuses on One Day to Exclusion of Others
September 5th, 2016
“[W]hen the prosecution’s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), [that] it is improper to give the jury an instruction using the ‘on or about’ language.” (People v. Jennings (1991) 53 Cal.3d 334, 358–359; People v. Gavin […]
Tags: Alibi, CC 207, Due Process, Notice
Written Jury Instructions: Trial Procedure Note
September 2nd, 2016
Often the record below does not establish that the packet of instructions in the Clerk’s Transcript is the actual packet the jurors received (or an exact copy of the jurors’ packet). The Rules of Court do not expressly require that the written instructions be included in the Clerk’s Transcript. (See Rule 8.320; 8.610 for death […]
Tags: Appeal, CC 200, Oral Instructions, Written Instructions
No Written Instruction? Oral Instruction Not Vitiated
August 31st, 2016
This post “Variance Between Reporter’s Transcript And Written Instructions” discussed which instruction controls – for purposes of appellate review – when the written and oral versions of the instruction are different. A corollary issue arises when a particular instruction was completely omitted from either the written or oral versions of the instruction. In People v. […]
Tags: Appeal, CC 200, Oral Instructions, Written Instructions
The Judge Erroneously Gave the Jury a Supplemental Jury Instructions Without First Consulting with Counsel
August 29th, 2016
In People v. Brown (2016) 247 CA4th 211 the not guilty verdict form for first degree murder had been signed and dated, but the signature and date had been crossed out and the words “withdrawl [sic]” and “void” were written across it. Without consulting counsel or making counsel aware of the situation, the judge sent […]
Tags: Supplemental Instructions
FAVORABLE KILL ZONE CASE
August 29th, 2016
In People v. Falaniko, No. B259918, 2016 Cal. App. LEXIS 632, at *14-15 (Ct. App. July 29, 2016) there was evidence that the defendant shot into a building, but no evidence that he intended to kill everyone inside or that two of the victims were in fact inside. The reviewing court held that there must […]
Tags: Attempted Murder: Kill Zone, CC 600