CALCRIM Motion Bank # CCM-002 (Re: Motion To Include CALCRIM Numbers And Titles With Requested Modifications In Written Instructions].)
__________ COURT OF CALIFORNIA
COUNTY OF __________
PEOPLE OF THE STATE OF CALIFORNIA,
MOTION TO INCLUDE CALCRIM NUMBERS AND TITLES WITH REQUESTED MODIFICATIONS IN WRITTEN INSTRUCTIONS; POINTS AND AUTHORITIES IN SUPPORT OF MOTION
The defendant requests that the CALCRIM numbers and titles be included on the written instructions [except for the specific title modifications which defendant will separately request]. Defendant further requests that any non-CALCRIM instructions be given three digit numbers and titles and otherwise be formatted to appear the same as do the CALCRIM instructions.
Defendant requests that the following CALCRIM titles be modified:
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
A. Propriety Of Including Titles On Written Jury Instructions
The CALCRIM User’s Guide acknowledges that the titles are “not part of the instruction” and “may be removed before presentation to the jury.” Use of the term “may” suggests that removal of the titles is intended to be discretionary with the trial judge. This is consistent with California Rules of Court Rule 2.1055(a)(2) (formerly Rule 229(a)(2)) which leaves the form and format of the instructions presented to the jury “to the discretion of the court.” (See also People v. Bloyd (1987) 43 C2d 333, 355 [submitted written instructions with descriptive titles is not error].)
Because accurate and descriptive titles make oral delivery of instructions more understandable and assist January 18, 2006 the jurors in reviewing the instructions in the juryroom. (See North Dakota Pattern Jury Instructions, NDJI-Criminal Introduction, page 1 (State Bar Association of North Dakota, 1985).) The defense requests that the titles be included with the requested modifications. This request should be granted so the jury will fully understand and follow the instructions without being misled. (See Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility…not merely to determine the facts, but to apply the law to those facts…”]; People of Terr. of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311; State v. Norris (1985) 10 Kan.App.2d 397, 401 [699 P2d 585] [“Instruction of the jury is one of the most fundamental duties of the court….”].)
B. Titles And Formatting Must Be Consistent Among All Instructions
The instructions must function as a “unified whole” (see CALCRIM User’s Guide, page 2 [“Related California Jury Instructions, Criminal (CALJIC)”]; People v. Lasko (2000) 23 C4th 101, 113; Davis v. Erickson (1960) 53 C2d 860, 863-64; see also United States v. Meadows (5th Cir. 1979) 598 F2d 984, 990; U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152) without over or under emphasis of any particular instruction or language.
However, there is a danger that jurors will give particular instructions undue emphasis if the written instructions reveal the requesting party or the fact that an instruction was not part of the “official” standard instructions. “… [U]ndue emphasis on portions of the charge [instructions] has the potential of undermining the integrity of the deliberative process.” (Commonwealth v. Oleynik (Pa. 1990) 568 A2d 1238 [524 Pa. 41, 46-47]; see also Commonwealth v. Byrd (1991) 598 A2d 1011 [409 Pa. Super. 611, 616].) Therefore, the jury should not be told who requested a particular instruction and/or which instructions are not from the standard set of pattern instructions. (See e.g., People v. Holiday (NY 1979) 416 NYS2d 663, 664 [improper for court to inform jury that specific instruction was being given at defendant’s insistence]; see also Presley v. State (AL 1990) 587 So2d 1016, 1020; Jones v. State (AL 1980) 392 So2d 1270, 1271; People v. Knowell (NY 1983) 464 NYS2d 525, 529; People v. Giamanco (NY 1979) 413 NYS2d 746; Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 2.22 [Charging The Jury – Sufficiency Of Charge — Balanced And Non-Prejudicial Wording] (West, 1999).) By informing the jury that the defendant requested a particular instruction there is a danger that the jury may view this as a concession or admission on the part of the defendant. Additionally, such a statement by the court may be viewed by the jury as a comment on the evidence expressing the judge’s view that the evidence does not support the instruction.
In sum, the titles, numbering and formatting of the written instructions should be seamless without any suggestion as to the requesting party or whether or not the instruction is from a standard set of pattern instructions. (Cf., CALJIC 17.45 [Manner of Recording Instruction Is Of No Significance – Content Only Governs].) Nor should the jurors be informed about modifications which have been made to the instructions. (See e.g., People v. Beach (1983) 147 CA3d 612, 624-25; see also CALJIC 17.45.)
C. Further Constitutional Grounds For This Request
This request is based, inter alia, 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 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by 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 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 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 US 275 [124 LEd2d 182; 113 SCt 2078] [improper instruction on burden of proof as structural error]; Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844] [jurors must be willing and able to follow the judge’s instructions]; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 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].)
This request is also based on the Fourteenth Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].)
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.)
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)
If this instruction request is not granted there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
Dated: __________ Respectfully submitted,