Prior Statement of Witness Who Claims to Not Remember
April 30th, 2014
A witness who claims to “no longer remember a certain event” may be confronted with the witness’s prior statements in which case, a CC 318 instruction would be warranted. (See People v. Solorzano (2007) 153 Cal. App. 4th 1026; People v. Hudson (2009) 175 Cal. App. 4th 1025.)
Tags: CC 318, Evidence and Witnesses
Direct And Circumstantial Evidence
April 30th, 2014
The California Supreme Court, People v. Livingston (2012) 53 Cal. 4th 1145, and Courts of Appeal, People v. Golde (2008) 163 Cal. App. 4th 101; People v. Ibarra (2007) 156 Cal. App. 4th 1174; People v. Anderson (2007) 152 Cal. App. 4th 919, have upheld the use of CC […]
Tags: CC 223, CC 224, Evidence and Witnesses
CC 1111
April 20th, 2014
In People v. Veale (2008) 160 Cal. App. 4th 40, the Court of Appeal upheld CC 1111. The Court held that “[CC1111] provides proper instruction on the element of a section 288, subdivision (b) offense.” (See also People v. Soto (2011) 51 Cal. 4th 229, 245-258.)
Tags: CC 1111, Lewd and Lascivious, Sex Crimes
Factors Relevant To Existence Of “Credible Threats”
April 20th, 2014
It is a defendant’s entire course of conduct, including conduct and statements to third parties that foreseeably a victim may be told, that is relevant to establishing a credible threat and not necessarily any particular intent that the comments be conveyed to the victim. (People v. Norman (1999) 75 Cal. App. 4th 1234.)
Tags: CC 1301, Threats
Testimony Of Child 10 Years Of Age Or Younger
April 20th, 2014
CC 330 parallels CJ 2.20.1 and the constitutionality of that instruction has been upheld by the courts. (People v. McCoy (2005) 133 Cal. App. 4th 974.)
Tags: CC 330, Evidence and Witnesses
Rape of Victim Who Is Both Intoxicated And Unconscious
April 10th, 2014
People v. Smith (2011) 191 Cal. App. 4th 199.
Tags: CC 100, CC 1003, Rape, Sex Crimes
Consent Not A Defense To PC 288(b)–Lewd Act By Force: Child Victim Under 14
April 1st, 2014
The April 2011 revision of CC 1111 was explained by the Advisory Committee on Criminal Jury Instructions: “In a very recent case, People v. Soto (2011) 51 Cal. 4th 229, the Supreme Court held that a victim’s consent is not a defense to committing either lewd or aggravated lewd acts on a child under […]
Tags: CC 1111, Consent, Defense Theory Instructions, Lewd and Lascivious, Sex Crimes
Consequences Of Threat Through Third Person
April 1st, 2014
It is not necessary to instruct on defendant’s intent to have a third person convey a threat to the victim, or that the defendant must know that the person with whom he has spoken is the victim’s “immediate family,” (People v. McPheeters (2013) 218 Cal. App. 4th 124.) when the prosecution’s theory is that […]
CC 1600 Robbery: Intent To Apply Force Is Not An Element
March 30th, 2014
People v. Anderson (2011) 51 Cal. 4th 989, 998-99, held, “the intent element of robbery does not include an intent to apply force against the victim or to cause the victim to feel fear. It is robbery if the defendant committed a forcible act against the victim motivated by the intent to steal, even […]
Tags: CC 1600, Judge Duty to Instruct, Mens Rea: Intent, Robbery, Sua Sponte
Court Should Decide Whether Defendant’s Conduct Is Constitutionally Protected
March 30th, 2014
On April 23, 2010, CC 1301 was revised to delete element 4 which required the prosecution to prove that “The defendant’s course of conduct was not constitutionally protected.” According to the CC Committee,“whether conduct is constitutionally protected is not an issue for the jury to decide.” CC 1301 was further revised to instruct the […]
Tags: Apprendi, CC 1301
