The Chiu Doctrine Explained
July 8th, 2016
People v. Chiu (2014) 59 C4th 155 created an important exception to the natural and probable consequences doctrine with respect to premeditated malice murder and attempted murder. As Chiu explained, “[t]here are two distinct forms of culpability for aiders and abettors. First, an aider and abettor with the necessary mental state is guilty of the […]
Tags: Accomplice Liability, Aider and Abettor, Appeal, Attempted Murder, CC 400, CC 401, CC 402, CC 403, CC 521, CC 600, CC 601, Chiu Doctrine, Premeditation and Deliberation, Standard of Prejudice
Kill Zone Theory Only Applies When Defendant Tried to Kill Everyone in the “Kill Zone” -– Correlation Between Number of Victims and Shots Fired or Existence of A Primary Target — Is Not Alone Determinative
July 7th, 2016
The kill zone theory applies where the defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim’s vicinity he is guilty of attempted murder of each member of the group. (See FORECITE F 600.2 Inst […]
Tags: Attempted Murder: Kill Zone, CC 600
Propriety of Juror and Factual Finding Re: Aggravating Circumstance
December 11th, 2015
The California Supreme Court has expressly ruled that the determination of whether there were aggravating circumstances to permit an enhanced sentence is not an issue which should be presented to a jury. (People v. Sandoval (2007) 41 Cal. 4th 825.) The Court of Appeal has ruled that the prosecution is not permitted to allege aggravating […]
Tags: Apprendi, CC 3250, CC 3251
Personal Use of Firearm: “You Must Decide” Language
December 7th, 2015
People v. Felix (2008) 160 Cal. App. 4th 849, rejected the defendant’s argument that was virtually identical to the one rejected by People v. Anderson regarding CC 3145. (See [This Post] ***.) Relying on Anderson, Felix concluded that CC 3550 clarified that the jury need only try to reach a decision.
Tags: CC 3146
Destructive Device: Definition Not Required
December 4th, 2015
People v. Adams (2009) 170 Cal App. 4th 893, held that a court has no sua sponte duty to define “destructive device” beyond the definition provided in PC 16460(a)(5). The Court of Appeal affirmed a conviction for offering to sell a destructive device where the trial court used CC 2575, an instruction identical to CC […]
Tags: CC 2570, CC 2575, Destructive Device
Enhancement For Vehicular Manslaughter: Applicability To Aider And Abettor
November 30th, 2015
The VC § 20001(c) enhancement applies both to persons who personally commit manslaughter and to aiders and abettors. (See People v. Calhoun (2007) 40 Cal. 4th 398.)
Tags: CC 2160
Defense Theory: BAC of Less than 0.05% Warrants Rebuttal Presumption That Defendant Was Not Under the Influence
November 27th, 2015
VC § 23610(a)(1), provides “[i]f there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” Thus, there is a statutory presumption that a defendant was […]
Tags: CC 2111, DUI/DWI, Inferences and Presumptions, Sample Instructions
Presumption of Intoxication: Expert Testimony
November 23rd, 2015
The evidence must support the permissive inference to authorize instructions on it. Therefore, unless an expert explains how the later tests could be consistent with a BAC of 0.08 percent at the time of defendant’s stop, there may be insufficient evidence to support the instruction. (See People v. Beltran (2007) 157 Cal. App. 4th 235, […]
Tags: CC 2111, DUI/DWI, Inferences and Presumptions
MMPA Is Broader than CUA
November 20th, 2015
The instruction in People v. London was found to be inadequate because it was based solely on the Compassionate Use Act (“CUA”) and did not comport with provisions of the Medical Marijuana Program Act (“MMPA”). (People v. London (2014) 228 Cal. App. 4th 544, 564.) The CUA allows a patient and his or her primary […]
Tags: CC 2370, Controlled Substance, CUA and MMPA
Small Amount of Controlled Substance Relevant to Knowledge
November 16th, 2015
CC 2376 defines usable amount as an amount in a quantity sufficient to be used as a controlled substance, claiming that there is no requirement that the amount be enough to affect the user. However, the California Supreme Court has made it clear that a very small amount of a controlled substance is relevant to […]
Tags: CC 2361, Controlled Substance, Defense Theory Instructions, Lack of Knowledge, Sample Instructions
