Marijuana Distribution: Minimal Movement as Defense Theory
November 13th, 2015
CC 2361 defines the term “transports” as carrying or moving an item from one location to another, even if the distance is short. However, minimal movement that does not facilitate use or trafficking does not qualify as transportation. The requirement of volitional transport of methamphetamine from one location to another avoids any unwarranted extension of […]
Tags: CC 2361, Controlled Substance, Defense Theory Instructions, Sample Instructions, Transportation
Gun Enhancement: Second Amendment Defense
November 9th, 2015
District of Columbia v. Heller (2003) 354 U.S. 570, held that the Second Amendment guarantees an individual’s right to bear arms. Although the court articulated an exception for felons, the Second Amendment’s protection of the right to bear arms should apply to preclude enhancements for merely being armed, as opposed to actually using a weapon […]
Tags: CC 131, CC 2303, Firearm Enhancement
Gun Enhancement: Pinpoint Instruction where Defendant is not Present when Gun and Drugs are Discovered
November 6th, 2015
CC 3131 (Related Issues) suggests the use of a pinpoint instruction in the situation where the underlying felony is possession of narcotics and the defendant is not present at the time the drugs and firearm are recovered. The instruction is very similar to CJ 17.16.2, the CJ pinpoint instruction on this issue and closely tracks […]
Tags: CC 2303, CC 3131, Firearm Enhancement
Failure to Pay Taxes: “Substantial” Deficiency not Required
November 2nd, 2015
People v. Mojica (2006)139 Cal. App. 4th 1197, held that an earlier version of CC 2801 erroneously required a “substantial” tax deficiency or a failure to report a “substantial” amount of income. Mojica took issue with the CC requirement that the government must prove the existence of a “substantial” tax deficiency or the failure to […]
Tags: CC 2801, Tax Crimes
Escape: Merely Breaching Barrier not Sufficient
October 30th, 2015
Justice Werdegar’s concurring opinion in People v. Bailey (2012) 54 Cal. 4th 740, 757, urged the committee to revise the jury instructions for escapes to make clear that an inmate does not commit escape merely by breaching a barrier enclosing a “designated area” of a prison or jail. (Id. at 757.) If a defendant […]
Tags: CC 2760, Escape
Definition of “Sharp Instrument”
October 26th, 2015
People v. Hayes (2009) 171 Cal. App. 4th 549, commented on CC 2745’s Bench Notes reference to People v. Custodia (1999) 73 Cal. App. 4th 807, 810-81, to define “sharp instrument.” Hayes concluded that the proper definition of “sharp instrument” which should be given to the jury in these types of cases is that “[a] […]
Tags: CC 2745, Possession of Sharp Instrument
Lawful Performance: Custodial Officer- -Use of “Reasonable” Force
October 23rd, 2015
People v. Gutierrez (2009) 174 Cal. App. 4th 515, identified the following problem with CC 2671: Read literally, [CC 2671] authorizes a custodial officer to use reasonable force in four situations- -“to restrain a person, to overcome resistance, to prevent escape, or in self-defense”- -but erroneously limits to the first situation alone not only […]
Tags: Assaulting Police Officer, CC 2671, Self Defense
Theft by False Pretenses: General Theft Instruction Is Improper
October 19th, 2015
It is error not to give CC 1804, which covers theft by false pretenses, and to simply give CC 1800, the general instruction on theft by larceny. If the theory is a defendant committed a fraud, such as faking an accident, to acquire medical services and damages, then the proper instruction is one that covers […]
Tags: CC 1800, CC 1804, Theft, Theft by False Pretenses
The Defendant Has No Burden Of Proof Re: Consent
October 16th, 2015
The Related Issues to CC 1700 state that “consent by the owner or occupant of property may constitute a defense to burglary.” However, no instruction is provided for this purpose. The Court of Appeal in People v. Sherow (2011) 196 Cal. App. 4th 1296, disapproved a consent instruction put together by a trial judge because […]
Tags: Burglary, CC 1700, Defense Theory: Consent, Sample Instructions
Failure To Address Standard Of Proof
October 12th, 2015
The modified instruction in Villatoro provided as follows: The People presented evidence that the defendant committed the crime of rape as alleged in counts 2,4,7,9,12, and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes. [¶] If you decide that […]