Merger Doctrine Not Applicable to First Degree Felony Murder
September 12th, 2022
In People v. Ireland (1969) 70 Cal.2d 522 the CSC held that “the crime of assault with a deadly weapon cannot be used as the sole predicate crime for a second degree felony-murder conviction because, when a firearm is used in a killing, such an assault is “an integral part of the homicide.” In People […]
Tags: CC 521, Felony Murder, Mayhem, Merger, Torture
Judge Has Sua Sponte Duty to Instruct on Lesser Offense of Involuntary Manslaughter Based on Commission of Inherently Dangerous Assaultive Felony
August 25th, 2022
The court has a sua sponte duty to instruct on involuntary manslaughter based on the commission of an inherently dangerous assaultive felony and to instruct on the elements of the predicate offense(s). (People v. Brothers (2015) 236 Cal.App.4th 24, 33–34; see also People v. Bryant (2013) 56 Cal.4th 959, 964.)
Tags: CC 580, CC 581, Involuntary, Judge Duty to Instruct, Lesser Included Offense
CALCRIM IS NOT “THE LAW”
August 2nd, 2022
Jury instructions “are not themselves the law,” “are not authority to establish legal propositions or precedent,” and “should not be cited as authority for legal principles in appellate opinions. [Citation] “At most, when they are accurate , … they restate the law.” ([citation], italics added by Montoyo court.) (People v. Montoya (2021) 68 Cal.App.5th 980, […]
Tags: CALCRIM Is Not The Law, CALCRIM Not Always Correct, CC 2512, CC 3500
Justice Liu Again Calls for the CSC to Revisit the Question of Whether PC 190.3 Factor(b) Violates Apprendi
July 26th, 2022
The Due Process Clause of the federal constitution (Fifth and Fourteenth Amendments) protect the accused against conviction except upon proof beyond a reasonable doubt of every essential fact and element of the charge. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US […]
Tags: ¬ Burden of Proof, Apprendi, CC 763, Death Penalty, Presumption of Innocence
Does Robbery Justify the Use of Deadly Force in Self Defense?
July 19th, 2022
PC 197 permits use of deadly force to prevent a felony only if the felony is “forcible and atrocious.” (People v. Morales (2021) 69 Cal.App.5th 978, 991.) Forcible and atrocious crimes are generally those crimes whose character and manner reasonably create a fear of death or serious bodily harm. (People v. Ceballos (1974) 12 Cal.3d […]
Tags: CC 3470, CC 505, CC 506, Robbery, Self Defense
Revised Kill Zone Instruction Is Still Defective
July 14th, 2022
People v. Canizales (2019) 7 Cal.5th 591, 607-09 concluded that CC 600 [September 2019 version] was deficient and recommended revisions of that instruction. (See CSC Calls For Revision Of Kill Zone Instruction (CC 600).) Canizales explained that the instruction was flawed because it did not adequately define the term “kill zone” and failed to direct […]
Tags: Attempted Murder: Kill Zone, CC 600
Defendant’s Previous Conviction: Cautionary Instruction
July 12th, 2022
It is beyond dispute that it is improper and prejudicial to permit the jurors to consider the fact that the defendant was previously tried and convicted for the same allegations. For example, in People v. Kessler (1963) 221 Cal.App.2d 187, 191, the court concluded that the unnecessary calling and identifying of a probation officer as […]
Tags: Alternate Jurors, CC 3575, Sample Instructions, Verdict
CC 1141 Distributing Matter Showing Sexual Conduct by Minor: Commercial Benefit Defined
July 8th, 2022
People v. Wimer (2022) 74 Cal.App.5th 113, 134-35 concluded that the trial court misstated the law when it instructed the jury on the fourth element of [PC 311.2(b). Element four of CALCRIM-1141-A stated: “When the defendant acted, he intended to distribute, show, or exchange the matter to someone else for money or other commercial benefit.” […]
Tags: CC 1141, Child Pornography
Substitution of Alternate Juror After Partial Verdict
July 5th, 2022
When an alternate juror is substituted during deliberations, CALCRIM 3575 should be given instructing the jurors to disregard the earlier deliberations. (See People v. Cain (1995) 10 C4th 1, 64-65.) However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In fact, it has been suggested that the […]
Tags: Alternate Jurors, CC 3575, Jury Deliberation, Sample Instructions, Verdict
Courtroom Restraint of Defendant May Create “Racialized Presumption of Dangerousness and Guilt”
June 28th, 2022
Ervine Davenport was shackled without case-specific justification at his murder trial in state court in Kalamazoo, Michigan. The Michigan Supreme Court found a violation of Deck v. Missouri (2005) 544 U.S. 622 and remanded for an evidentiary hearing on prejudice under Chapman v. California (1967) 386 U.S. 18. “On remand, the trial court conducted […]
Tags: CC 204, Courtroom Security