CALCRIM Motion Bank # CCM-003 (Re: Motion To Include CALCRIM Numbers But Not Titles In Written Instructions].)
__________ COURT OF CALIFORNIA
COUNTY OF __________
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PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
Defendant(s).
_________________________/
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NO. _________
MOTION TO INCLUDE CALCRIM NUMBERS BUT NOT TITLES IN WRITTEN INSTRUCTIONS; POINTS AND AUTHORITIES IN SUPPORT OF MOTION
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Defendant requests that the CALCRIM numbers, but not the 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.
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
A. The Titles On The Written Jury Instructions Should Be Deleted To Assure The Jurors Are Not Misled
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].)
The CALCRIM Committee acknowledges that the titles of its instructions “are directed to lawyers and sometimes use words and phrases not used in the instructions themselves.” (User’s Guide, page 2.) Therefore, removal of the titles is necessary to assure that the jurors are not misled and that they properly consider and apply the instructions. (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. CALCRIM Numbers Should Be Left But Mut Not Imply That Particular Instructions Were Specially Requested Or Modified
Even if the titles are deleted, the numbers should be left for purposes of cross-referencing and tracking questions about the instructions during deliberations. However, the numbers should be seamless.
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.
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,
_____________________________
TRIAL COUNSEL CAVEAT: ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
