Stalking Instruction Upheld But Has Possible Problem
September 4th, 2015
The language of CC 1301 was upheld against several challenges in People v. Ibarra (2007) 156 Cal. App. 4th 1174, 1195-1197. In Ibarra, the Court of Appeal also rejected a request for a unanimity instruction noting that stalking always involves a continuous course of conduct over a period of time. (Id. at 1198.) The Court […]
Tags: CC 1301, Mens Rea, Mens Rea: Knowledge, Stalking
Due Process Challenge To Use Of Domestic Violence As Character Evidence
August 31st, 2015
Defense counsel should challenge the admission of domestic violence evidence as character evidence on federal due process grounds. However, even if such evidence is admitted, defense counsel should challenge this CC with respect to the use of such evidence. California case law notwithstanding, this instruction is unintelligible and unconstitutionally reduces the burden of proof. The […]
Tags: CC 852, CC 853, Due Process, Uncharged Acts and Offenses
Use Of Other Counts In The Charges As Propensity Evidence
August 28th, 2015
People v. Villatoro (2012) 54 Cal. 4th 1152, held that evidence of other sex crimes pursuant to EC § 1108 may be admitted even when the evidence consists of other sex crimes alleged as counts in the charging document. EC § 1108 and EC § 1109, which is the underlying statute for CC 852, are […]
Tags: CC 852, Uncharged Acts and Offenses
Does Mayhem Require “Great Bodily Injury”
August 24th, 2015
People v. Santana (2013) 56 Cal. 4th 999,1009, did not disapprove the cases relied upon by CC 801. Thus, defense counsel should rely on the cases cited in CC 801, and cases cited in Santana, and argue that the jury be instructed that mayhem does require “great bodily injury.” (CCJICH § 5:4, p. 262.)
Tags: CC 801, Mayhem
Death Penalty: Aggravating and Mitigating Circumstances
August 21st, 2015
CC 763, which lists those factors that can be considered in the penalty phase of death penalty trials, was revised on December 9, 2008. As explained by the Advisory Committee on Criminal Jury Instructions in its report to the Judicial Council, CC 763 “was revised to clarify that ‘violent criminal activity’ only includes crimes directed […]
Tags: CC 763, Death Penalty
Gang Special Circumstance
August 17th, 2015
People v. Carr (2010) 190 Cal. App. 4th 475, 486, held that CC 736’s “inclusion of a knowledge element in the special circumstances of killing on behalf of a gang is not legally incorrect even if the statute itself does not expressly require its inclusion because it is constitutionally required.” Carr did note, however, […]
Tags: CC 736, Gangs, Homicide, Special Circumstances
Malice and Voluntary Intoxication
August 14th, 2015
People v. Turk (2008) 164 Cal. App. 4th 1361, 1382, rejected the defendant’s argument that the instruction gave insufficient guidance that malice aforethought and intent to kill are the same thing. The jury was instructed under CC 520 in defining murder that, “[t]he defendant acted with express malice if he unlawfully intended to kill.” (Ibid.) […]
Tags: CC 520, CC 625, Malice, Mens Rea, Voluntary Intoxication
Involuntary Manslaughter: Existence of Legal Duty As Jury Question
August 10th, 2015
The Bench Notes state that the determination of whether a defendant has a legal duty is one to be decided by the judge, not the jury. However, this conclusion violates United States Supreme Court precedents which require that every element of an enhancement must be proved beyond a reasonable doubt and found true by a […]
Tags: Apprendi, CC 582, Involuntary Manslaughter
Involuntary Manslaughter and Criminal Negligence
August 7th, 2015
People v. Butler (2010) 187 Cal. App. 4th 998, 1014, upheld CC 580 as follows: The trial court’s adherence to the formulation of the instruction in [CC 580] adequately informed the jury of the criminal negligence standard applicable to all three forms of involuntary manslaughter. As [previously stated by the Court of Appeal] […]
Tags: CC 580, Criminal Negligence, Homicide, Involuntary Manslaughter
Provocation And Premeditation/Deliberation
August 3rd, 2015
In People v. Hernandez (2010) 183 Cal. App. 4th 1327, the defendant argued that CC 522 failed to specifically state that provocation can negate premeditation and deliberation necessary for first degree murder. The reviewing court acknowledged that CJ 8.73 did specifically state that premeditation and deliberation can be negated by provocation. However, CC 522 […]
Tags: CC 522, Heat of Passion/Provocation, Premeditation and Deliberation
