Hit and Run: Knowledge Element
August 10th, 2014
When supported by substantial evidence, the defense has the right, upon request, to a defense theory instruction which focuses on the prosecution’s burden to prove that the defendant actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in […]
Tags: CC 2140, CC 2141, Hit and Run, Mens Rea: Knowledge
CC 1403 Limited Purpose Of Evidence Of Gang Activity
July 30th, 2014
In People v. Samaniego (2009) 172 Cal. App. 4th 1148, the defendant argued that it was improper to instruct the jury with CC 1403 because it allowed the jury to consider gang expert testimony as to motive and witness credibility under the optional clauses of CC 1403. The Court of Appeal disagreed stating […]
Tags: Cautionary and Limiting Instructions, CC 1403, Gangs
Possession Of Billy
July 30th, 2014
A “billy,” as used in PC 22210, does not need to be defined. (See People v. Davis (2013) 214 Cal. App. 4th 1322, 1330.)
Tags: CC 2500, Possession of Billy
CC 401 Defense Theory Instruction: Knowledge Element For Aider And Abettor Liability
July 20th, 2014
People v. Stallworth (2008) 164 Cal. App. 4th 1079, concluded that CC 401 is neither confusing nor incomplete provided that CC 220 is also given so that the jury understands that the reasonable doubt standard applies to an aider and abettor’s knowledge. However, the defense should have the right to an instruction pinpointing […]
Tags: CC 401
Firearm Near Drugs: “Facilitative Nexus” Not Required
July 10th, 2014
People v. Pitto (2008) 43 Cal. 4th 228, rejected the “facilitative nexus” set forth by the Court of Appeal which had been adopted by both CC and CJ. Under People v. Pitto, “[w]hen (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) […]
Tags: CC 3115, Firearm Enhancement
Second Amendment As Bar To Arming Enhancement
July 1st, 2014
The United States Supreme Court has held that the Second Amendment guarantees an individual’s right to bear arms. (District of Columbia v. Heller (2008) 554 U.S. 570.) Although the court articulated an exception for felons, the defense position is that this exception does not apply to armed enhancements. The Second Amendment’s protection of the […]
Tags: CC 3115, CC 3117, CC 3130, CC 3132, Firearms
Use Of Firearm: Affect Of Malfunction
June 30th, 2014
CC 3148 is used for the enhancement of personally using a firearm and intentionally discharging it under California’s 10-20-Life Law, PC § 12022.53(c). A defendant can be found liable under this statute even if due to the firearm’s malfunction, the discharge does not result in a projectile being expelled from the gun. (People v. […]
Tags: CC 3148
GBI: Group Beating Situation
June 1st, 2014
People v. Dunkerson (2007) 155 Cal. App. 4th 1413, upheld CC 3160 in the “group beating” situation. Dunkerson found that CC 3160 in the “group beating” context was not materially different from CJ 17.20, and that CJ 17.20 had been upheld by the California Supreme Court. Dunkerson held that […]
Tags: CC 3160
Revision of CC Instruction re: Independent Research
May 30th, 2014
The February, 2012, revision of CC 101 modified the section in the second to last paragraph emphasizing to the jury that “it may not use any form of research or communication. . ..” The February, 2012, revision also added in brackets the section in the second to last paragraph telling jurors that if they […]
Tags: CC 101, Jury Misconduct
GBI: Intent To Inflict GBI Not Required
May 30th, 2014
People v. Poroj (2011) 190 Cal. App. 4th 165, 168, upheld CC 3160, finding that the instruction correctly explained that the enhancement for personally inflicting great bodily injury in PC § 12022.7, “does not require a showing of intent to inflict GBI, separate or apart from the intent required to commit the felony or attempted […]
Tags: CC 3160, GBI, Intent, Mens Rea
