Self Defense: Distinction Between Homicide Versus Assault Charges
February 3rd, 2022
“The difference between CALCRIM No. 3470 and CALCRIM No. 505—that is,the difference between self-defense in the homicide context and self-defense that will justify an assault—lies in the type of the threat the defendant believed they faced. To justify a homicide or attempted homicide, the defendant must believe that “danger” or “great bodily harm” is imminent, […]
Tags: CC 3470, CC 505, Self Defense
Transferred Self Defense
January 27th, 2022
The doctrine of transferred self-defense is available to insulate one from criminal responsibility where his or her act, justifiably in self-defense, inadvertently resulted in the injury of an innocent bystander. Under this doctrine, “just as one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too “one’s lack of criminal intent follows […]
Tags: CC 3470, CC 505, Sample Instructions, Self Defense
Questioning of Witness by Judge: Cautionary Instruction
January 20th, 2022
RATIONALE: When the judge asks questions of a witness, there is a danger that the jury will place undue emphasis or importance on the question or to the answer elicited, or consider that the question indicates the judge’s view of the evidence. Therefore, a cautionary instruction admonishing the jury not to attach special weight to […]
Tags: CC 101, Judge Comment on the Evidence, Judicial Misconduct, Sample Instructions
Generic Pattern Instructions Should Be Tailored to the Facts of the Case
January 13th, 2022
The judge may not properly “refuse[] to tailor [an] instruction to the fact of the case.“ (People v. Hall (1980) 28 C3d 143, 159; see also People v. Falsetta (1999) 21 C4th 903, 924; People v. Fudge (1994) 7 C4th 1075, 1110; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor […]
Tags: Judge Duty To Instruct Correctly, Judge Duty to Tailor
Gang Enhancement When Member of Gang Acts Alone in Committing Felony?
January 11th, 2022
Review was granted in People v. Renteria (Jan. 5, 2021, F076973) [nonpub. opn.], review granted 4/14/2021 (S266854) to consider whether the evidence was sufficient to support the criminal Street gang enhancements imposed under Penal Code section 186.22, subdivision (b). On 4/21/2021, the court ordered the issues to be briefed and argued in this case limited […]
Tags: CC 1400, CC 1401, Gangs
Jury Misconduct During Deliberations: Use of Juror Declarations
December 29th, 2021
In People v. Flores (2021) 70 Cal.App.5th 100 (Oct. 8, 2021, C089569) Flores was found guilty of voluntary manslaughter, among other crimes, after the jury initially declared it was unable to reach a unanimous verdict. Defendant moved for a new trial based on evidence the jury considered defendant’s sentence in determining the verdict. The jurors’ […]
Tags: Jury Misconduct
Questions to Witness by Judge: Cautionary Instruction
December 15th, 2021
RATIONALE: When the judge asks questions of a witness, there is a danger that the jury will place undue emphasis or importance on the question or to the answer elicited, or consider that the question indicates the judge’s view of the evidence. Therefore, a cautionary instruction admonishing the jury not to attach special weight to […]
Tags: CC 101, Judge Comment on the Evidence, Judicial Misconduct
CC 3149: Error to Omit the Requirement That the Defendant’s Act Caused Great Bodily Injury or Death of a Person “Who Was Not an Accomplice to the Crime”
December 8th, 2021
In People v. Morales (2021) 67 Cal.App.5th 326 the court gave a modified version of the CC 3149 which required the jury to decide whether defendant’s act caused great bodily injury to or the death of a person or fetus, but omitted the phrase “who was not an accomplice to the crime.” Following People […]
Tags: CC 3419, Firearm Enhancement
Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory
December 1st, 2021
When a single act is charged as the basis for the attempted murders of two or more persons, the intent to kill element must be proved independently as to each alleged victim. A so-called “kill zone” instruction is only proper when: (1) the circumstances of the defendant’s attack on a primary target are such that […]
Tags: Attempted Murder: Kill Zone, CC 600
Death Penalty Sentencing: Jurors Are Bound by Counsel’s Argument That Lingering Doubt Is Mitigation
November 24th, 2021
At the sentencing phase of a capital case the jury may properly consider evidence of lingering or residual doubt as a mitigating factor. However, … there is no constitutional right to instructions on lingering doubt. [Citations.] Instructions to consider the circumstances of the crime [citations], together with defense argument highlighting the question of lingering or […]
