CALCRIM Motion Bank # CCM-001

CALCRIM Motion Bank # CCM-001 (Re: Motion For Defense Requested Jury Instructions].)

__________ COURT OF CALIFORNIA

COUNTY OF __________

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

Defendant(s).

_________________________/

NO. _________

MOTION FOR DEFENSE REQUESTED JURY INSTRUCTIONS; POINTS AND AUTHORITIES IN SUPPORT OF MOTION

Defendant ____________ moves that the jury instructions set forth below be given as requested. This motion is based on the following Points and Authorities, any additional Points and Authorities included with the requested instruction and any evidence, offers of proof and/or argument which may be presented in court.

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

THIS COURT HAS THE POWER AND DUTY TO MODIFY OR REPLACE THE STANDARD CALCRIM INSTRUCTIONS

A. The Endorsement Of CALCRIM By The Rules Of Court Is Merely A Non-Binding Recommendation

1. This Court’s Inherent Discretionary Powers And Duties Supercede Any Recommendation By The Rules Of Court

In the final analysis, “the trial court has both the duty and the discretion to control the conduct of the trial. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 346.) Accordingly, the Judicial Council has no binding authority over the trial judge as to jury instructions. (See People v. Thompkins (1987) 195 Cal.App.3d 244, 250 [the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve]; see also Penal Code § 1093(f) [judge may give jurors instruction which he or she “deem[s] necessary for their guidance …”]; PC1127 [“in charging the jury the court may instruct the jury regarding the law applicable to the facts of the case…either party may present to the court any written charge on the law … [i]f the court thinks it correct and pertinent, it must be given …”].) Rather, the judge’s instructional powers and duties come from the legislature, the appellate courts, and the above referenced inherent duty to “control the conduct of the trial.” (See McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841 [standard jury instructions are “not blessed with any special precedential or binding authority”]; People v. Thompkins, supra, 195 Cal.App.3d at 250 [rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations]; California Rules of Court, Rule 2.1050(b) (formerly Rule 855(b)) [“The articulation and interpretation of California law … remains within the purview of the Legislature and the courts of review.”].)

2. The Federal Constitution Supercedes The Rules Of Court

The judge’s instructional authority also resides in the Due Process and Jury Trial Clauses of the federal constitution (Sixth and Fourteenth Amendments) whose mandate of a fair jury trial for a person accused of a crime supercedes a mere recommendation in the domestic court rules. (See e.g., Rock v. Arkansas (1987) 483 U.S. 44 [107 S.Ct. 2704; 97 L.Ed.2d 37]; Green v. Georgia (1979) 442 U.S. 95 [99 S.Ct. 2150; 60 L.Ed.2d 738]; Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105; 39 L.Ed.2d 347]; Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038; 35 L.Ed.2d 297]; Washington v. Texas (1967) 388 U.S. 14 [87 S.Ct. 1920; 18 L.Ed.2d 1019]; see also Section IV, below.)

Thus, it would be unconstitutional to interpret the CALCRIM instructions as tying the judge’s hands when it comes to instructing the jury. The judge must have the leeway to give non-CALCRIM instructions when necessary to properly instruct the jury: “A jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 836.) “Indeed, one can legitimately argue that the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve.” (People v. Thompkins, supra, 195 Cal.App.3d at 250.)

3. Like CALJIC, CALCRIM Is Not Sacrosanct

Through usage and custom, standard pattern instructions often are cited as legal authority. However, this is a mischaracterization. “Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of standard jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841.)

In other words, the fact that the CALCRIM instructions are recommended by the Judicial Council (Rule 2.1050e (formerly Rule 855(e)) does not make them “sacrosanct.” The CALJIC instructions were recommended with similar language.¹ Nevertheless, the reviewing courts consistently admonished against giving them undue deference. As explained by the California Supreme Court:

“Though we cite CALJIC No. 12.00 for reference purposes, we caution that jury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate, as the quoted portion was here, they restate the law.” (People v. Morales (2001) 25 Cal.4th 34, 48 fn 7; see also People v. Alvarez (1996) 14 Cal.4th 155, 217 [“CALJIC 1.00 is not itself the law. Like other pattern instructions, it is merely an attempt at a statement thereof”]; People v. Mata (1955) 133 Cal.App.2d 18, 21 [CALJIC instructions not “sacrosanct”].)

Similarly, despite their billing as California’s “official instructions” the CALCRIM instructions are not the law and it would be patent error for the trial judge to give them undue deference.²

B. The Rules Of Court Authorize This Court To Replace Or Substantially Modify CALCRIM With Instructions That “More Accurately State The Law”

Rule 2.1050e (formerly Rule 855e) gives the judge discretion to use non-CALCRIM instructions or “substantially modified” CALCRIM instructions which are “more accurate than the CALCRIM instructions and would be understood by the jurors.”³

Rule 2.1055(a)(1)(B) (formerly Rule 229(a)(1)(B)), California Rules of Court, defines such non-CALCRIM instructions as follows:

“Special jury instructions,” meaning instructions from other sources, those specially prepared by the party, or approved instructions that have been substantially modified by the party.

Such “special instructions” must be supported by “citation of authorities.” (Rule 2.1055(d) (formerly Rule 229(d)).)

C. The Trial Judge Has The Power And Duty To Modify, Supplement or Replace CALCRIM Instructions Even If The Non-CALCRIM Instructions Does Not “More Accurately “State The Law”

1. Rule 2.1050e (formerly Rule 855e) Erroneously Assumes That The Only Role Of Jury Instructions Is To “State The Law“

Rule 2.1050e (formerly Rule 855e) states as follows:

[Use of instructions] Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors. [Emphasis added.]

Hence, according to this rule, the propriety of a non-CALCRIM instruction depends on its ability to “more accurately state the law…” However, the rule erroneously assumes that the only role of jury instructions is to “state the law.” In reality, jury instructions do much more.

2. Cautionary, Limiting Or Explanatory Instructions Should Not Be Evaluated Only By How Accurately They “State The Law”

When a party seeks an instruction which revises or replaces a CALCRIM cautionary, limiting or explanatory instruction, the inquiry should focus on whether the requested instruction better accomplishes the instructional objective, not whether it more accurately states the law. (See e.g., People v. Danks (2004) 32 Cal.4th 269 [even though telling jury not to speak with anyone accurately stated the law, the California Supreme Court recommends more specific instructions on the matter]; People v. Bolton (1979) 23 Cal.3d 208, 215-16 [California Supreme Court recommends instruction to fully “counteract” prosecutorial misconduct]; People v. Duran (1976) 16 Cal.3d 282, 292 [shackling instruction must not imply defendant is a security risk].)

3. Theory Of The Case Instruction Should Not Be Evaluated Only By How Accurately They “State The Law”

Another type of jury instruction which does more than simply state the law is one which seeks to explain a party’s theory of the case. The propriety of such instructions depends primarily on their ability to properly explain the party’s theory of the case and to relate the theory to the standard of proof.

Thus, even though a defense theory instruction may not state the law any more accurately than the general instructions defining the offense, the defense theory instruction should still be given. (See e.g., People v. Wright (1988) 45 Cal.3d 1126 [eyewitness]; People v. Kane (1946) 27 Cal.2d 693, 700 [“It is true that the instruction given stated the law correctly; but it was brief, general, and colorless in comparison with the instruction asked for, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis”]; see also U.S. v. Zuniga (9th Cir. 1993) 989 F.2d 1109 [alibi instruction required even though elements of the charge accurately required the prosecution to prove guilt].)

“A defendant is entitled, on request, to a nonargumentative instruction that direct attention to the defense theory of the case and relates it to the state’s burden of proof.” (CALCRIM 220, Related Issues; see also CALCRIM 1150, Bench Notes [“If necessary for the jury’s understanding of the case, the court must instruct sua sponte on a defense theory in evidence…”]; People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”]; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating defense to burden of proof].)

Such an instruction may “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 Cal.3d 143, 159; People v. Simon (1995) 9 Cal.4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Sears (1970) 2 Cal.3d 180, 190.)

In sum, Rule 2.1050 (formerly Rule 855) should not be read to require the defendant to establish that a theory of the case instruction “more accurately states the law” than the CALCRIM instructions. Instead, the propriety of the instruction should turn on whether it is more efficacious than the CALCRIM instructions in relating the defense theory to the prosecution’s burden of proof.

II.

THIS COURT HAS THE POWER AND DUTY TO GIVE
NON-CALCRIM INSTRUCTIONS ON MATTERS WHICH CALCRIM DOES NOT ADDRESS

Rule 2.1050e (formerly Rule 855e) provides:

Whenever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument.

Moreover, Rule 2.1055(a)(1)(B) (formerly Rule 229(a)(1)(B)) expressly authorizes the submission of “special jury instructions” which are instructions from sources other than CALCRIM. Each special instruction must include citation to authorities that support the instruction. (Rule 2.1055(e) (formerly Rule 229(e)).)

Hence, the court rules anticipate that the trial judge will fulfill his or her instructional duties by giving non-CALCRIM instructions on matters not addressed by CALCRIM. (See Penal Code §1093(f); see also, People v. Thompkins, supra, 195 Cal.App.3d at 250; McDowell v. Calderon, supra, 130 F.3d 833.)

III.

THIS COURT HAS THE POWER AND DUTY TO MIX CALCRIM AND CALJIC INSTRUCTIONS WHEN APPROPRIATE

A. CALCRIM’s Assertion That CALJIC Instruction Should “Never” Be Used With CALCRIM Instructions Is Illogical And Contrary To The Law

The CALCRIM User’s Guide states:

The CALJIC and CALCRIM instructions should never be used together. While the legal principles are obviously the same, the organization of concepts is approached differently. Trying to mix the two sets of instructions into a unified whole cannot be done and may result in omissions or confusion that could severely compromise clarity and accuracy. [Emphasis in original.]

This blanket prohibition against the use of any CALJIC and CALCRIM instructions together is illogical. There is no reason why selected CALJIC instructions on discrete issues cannot be substituted for, or added to, a CALCRIM instruction. For example, if the judge concluded that the CALJIC instruction on good character (CALJIC 2.40) should be given instead of the CALCRIM instruction (CALCRIM 350), the substitution could be seamlessly made without impacting any of the other instructions. Nor would the content of the good character instruction be substantially different since both instructions address the same issue with similar and, in some cases, identical language.

In other words, the trial judge has the duty to give the jurors all instructions “necessary for their guidance.” (Penal Code §1093(f).) If one or more of those necessary instructions happens to be from CALJIC, failure to give it would be an abdication of the judge’s statutory and constitutional duty to fully and fairly instruction the jury. (See e.g., McDowell v. Calderon, supra, 130 F.3d 833; see also Section IV, below.)

B. The Judicial Council Does Not Have The Authority To Ban The Mixing Of CALJIC And CALCRIM

The CALCRIM Committee simply does not have the authority to ban any particular instruction or set of instructions. The ultimate authority over jury instructions resides with the legislature, reviewing courts and trial judge, not the CALCRIM Committee. (See I, above.)

IV.

UNLESS THESE INSTRUCTIONAL REQUESTS ARE GRANTED THE DEFENDANT’S CONSTITUTIONAL RIGHTS WILL BE VIOLATED

This motion is based on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments) as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 U.S. 145 88 S.Ct. 1444; [20 L.Ed.2d 491]; see also Tennessee v. Lane (2004) 541 U.S. 509, 562 [124 S.Ct. 1978; 158 L.Ed.2d 820].)

Failure to modify and supplement the CALCRIM instructions as requested by the defense will violate the defendant’s rights under the above constitutional provisions in one or more of the following ways:

1. Failing to assure that the jury fully understands the law stated in the jury instructions and that the jury fairly, impartially and accurately applies that law. (See Estelle v. McGuire (1991) 502 U.S. 62, 70-72 [112 S.Ct. 475; 116 L.Ed.2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 U.S. 506, 514 [115 S.Ct. 2309; 132 L.Ed.2d 444] [it is “the jury’s constitutional responsibility…not merely to determine the facts, but to apply the law to those facts…”]; Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078; 124 L.Ed.2d 182] [improper instruction on burden of proof as structural error]; Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844; 83 L.Ed.2d 841] [jurors must be willing and able to follow the judge’s instructions]; Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748 [failure to remove two jurors who had previously convicted another person for the same robbery charged against Johnson, where those jurors formed the opinion that Johnson was guilty before his trial began, violated his Sixth and Fourteenth Amendment rights to be tried by an impartial jury].)

2. Failing to properly place the burden on the prosecution to prove every essential fact and element of the charge beyond a reasonable doubt. (Neder v. U.S. (1999) 527 U.S. 1 [119 S.Ct. 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 U.S. 506, 509-12 [115 S.Ct. 2309; 132 L.Ed2d 444]; Jackson v. Virginia (1979) 443 U.S. 307, 315-18 [99 S.Ct. 2781; 61 L.Ed.2d 560]; In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068; 25 L.Ed.2d 368].)

3. Violating the defendant’s right to jury instructions which relate the defense theories to the prosecution’s burden of proof. (See generally Martin v. Ohio (1987) 480 U.S. 228, 233-34 [107 S.Ct. 1098; 94 L.Ed.2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship].) Without such defense theory instruction the jurors may improperly shift the burden to the defendant. (Ibid.; see also generally Carella v. California (1989) 491 U.S. 263, 265-66 [109 S.Ct. 2419; 105 L.Ed.2d 218]; Sandstrom v. Montana (1979) 442 U.S. 510, 521-24 [99 S.Ct. 2450; 61 L.Ed.2d 39].)

4. Violating the defendant’s right to “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 467 U.S. 479, 485 [104 S.Ct. 2528; 81 L.Ed.2d 413]; see also Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2d 177]; Martin v. Ohio (1987) 480 U.S. 228, 233-34 [107 S.Ct. 1098; 94 L.Ed.2d 267]; Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142; 90 L.Ed.2d 636]; Rock v. Arkansas (1987) 483 U.S. 44 [107 S.Ct. 2704; 97 L.Ed.2d 37]; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [93 S.Ct. 1038; 35 L.Ed.2d 297]; Richmond v. Embry (10th Cir. 1997) 122 F.3d 866, 871; Taylor v. Singletary (11th Cir. 1997) 122 F.3d 1390, 1394 [right to present defense witness testimony resides in the compulsory due process clause and the due process clause of the federal constitution]; U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F.2d 583, 588.)

5. Depriving the defendant of the constitutional right to a defense theory instruction or instructions which are an essential part of the right to present a defense. (See e.g., U.S. v. Sayetsitty (9th Cir. 1997) 107 F.3d 1405, 1414 [defendant has a due process right to have the jury consider defenses recognized by state law which negate elements of the defense].) Absent an appropriate instruction, the right to present evidence is entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202 [“[p]ermitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal”]; see also Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-42 [same]; People v. Cox (1991) 53 Cal.3d 618, 695-96 [defendant has right to reasoned, considered judgment of the jury].)

6. Failing to assure the reliability of the jury’s disposition of this case, as required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2d 177]; White v. Illinois (1992) 502 U.S. 346, 363-64 [112 S.Ct. 736; 116 L.Ed.2d 848]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646 [94 S.Ct. 1868; 40 L.Ed.2d 431]; Thompson v. City of Louisville (1960) 362 U.S. 199, 204 [80 S.Ct. 624; 4 L.Ed.2d 654].)

7. Arbitrarily denying the defendant a state created right or rights. (Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227; 65 L.Ed.2d 175].)

8. Committing multiple errors of state law which cumulatively render the trial unfair. (See Greer v. Miller (1987) 483 U.S. 756, 765 [107 S.Ct. 3092; 97 L.Ed.2d 618]; Taylor v. Kentucky (1978) 436 U.S. 478, 488 [98 S.Ct. 1930; 56 L.Ed.2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622; People v. Hill (1998) 17 Cal.4th 800, 844-45.)

In sum, if these requests to modify and supplement the CALCRIM instructions are not granted there is a reasonable likelihood that the jurors will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 U.S. 62 [112 S.Ct. 475; 116 L.Ed.2d 385]; McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 839.)

IV.

CONCLUSION

For the foregoing reasons this Court is both authorized and duty bound to fully consider the defendant’s instructional requests for modification and/or replacement of specific CALCRIM instructions.

Dated: __________ Respectfully submitted,

_____________________________

Endnotes

¹Former California Rules of Court, Appendix, Div. § I, Section 5, provided: “Whenever the latest edition of California Jury Instructions – Criminal (CALJIC) contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the CALJIC instruction unless he or she finds that a different instruction would more adequately, accurately, and clearly state the law. Whenever the latest edition of CALJIC does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when a CALJIC instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument. When an instruction requested by a party is a modified CALJIC instruction, the party should indicate therein, by use of parentheses or other appropriate means, the respect in which it is modified. A trial judge in considering instructions to the jury shall give no less consideration to those submitted by the attorneys for the respective parties than those contained in the latest edition of California Jury Instructions – Criminal (CALJIC). (Adopted, eff. July 1, 1969. As amended, eff. Jan. 1, 1970; Jan. 1, 1971; Sept. 1, 2003.)”

² “[T]he fact that pattern jury instructions are available should not preclude a judge from modifying or supplementing a pattern instruction to suit the particular needs of an individual case …. The thrust of such objection goes not to the use of pattern instructions themselves, but rather to the practice of rote reliance upon such instructions without modification, a practice that may develop simply by virtue of their existence …. [P]attern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case.” (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 pp. 236-237.)

³ The rules anticipate that CALCRIM instructions may be “modified to submit the issue properly” or a non-CALCRIM instruction may be used whenever the CALCRIM instructions do not contain an adequate instruction on the subject. (See Rule 855(e); see also Rule 229(a)(1)B) [referring to CALCRIM instructions which are “substantially modified”].)