Category Archives: Blog

Blog

CC 703: Felony Murder: Special Circumstance Liability — Factors Re: Major Participant Determination

PC 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137 [95 L. Ed. 2d 127, 107 S. Ct. 1676], “which articulates the constitutional limits on executing felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal. 4th 788, 794.) “Tison and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782 [73 L. Ed. 2d 1140, 102 S. Ct. 3368], collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions. Section 190.2(d) must be accorded the same meaning.” [Emphasis added.] (Banks, supra.)

Banks described the nature of this spectrum by explaining that Enmund and Tison do not establish maximum and minimum limits of death eligibility:

The actions of Earl Enmund, the Tison brothers, and countless other nonkiller felony murderers fall on a continuum, a spectrum of culpability. To ask whether there is any variation at all between Matthews’s conduct and Enmund’s is certainly relevant, but in doing so we do not simply assume Enmund’s conduct represents a constitutional maximum, i.e., the most culpable one can be and yet still be constitutionally ineligible for death, such that any variation would move one into the death-eligible zone. Nationally, thousands of armed robberies occur each year; per Enmund, only roughly 1 in 200 results in death. (Enmund v. Florida, supra, 458 U.S. at p. 800, fn. 24.) If Enmund’s actions represented the outer limit of conduct immune from death eligibility, Tison would have been an easy case. It was not. We do not view Enmund as defining a maximum for ineligibility for the death penalty, any more than we view the egregious actions of the Tison brothers as a constitutional minimum level of culpability for death eligibility.

(Banks, 61 C4th at 811.)

Banks discussed the factors relevant to where a particular defendant falls on the spectrum as follows:

“Among those factors that distinguish the Tisons from Enmund, and thus may play a role in determining whether a defendant’s culpability is sufficient to make him or her death eligible, are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation “in criminal activities known to carry a grave risk of death” [citation] was sufficiently significant to be considered “major” [Citations.].”

(Banks, 61 C 4th at 803.)

In light of Banks the CALCRIM Committee added the following language to CC 703:

 [When you decide whether the defendant was a major participant,consider all the evidence. Among the factors you may consider are:

  1. What role did the defendant play in planning the criminal enterprise that led to the death[s]?

2. What role did the defendant play in supplying or using lethal weapons?

3. What awareness did the defendant have of particular dangers posed by the nature of the crime, any weapons used, or past experience or conduct of the other participant[s]?

4. Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder?

5. Did the defendant’s own actions or inactions play a particular role in the death?

6. What did the defendant do after lethal force was used?

[7._____________________<insert any other relevant factors.>]

No one of these factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant.

See https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3

Blog

California Supreme Court Continues to Grant Review in “Kill Zone” Cases

On July 27, 2016 the CSC granted review in yet a another “kill zone” case:

People v. Cardona (2016) 246 Cal.App.4th 608, review granted 7/27/2016 (S234660/B261458). Briefing deferred pending decision in People v. Canizales (2014) 229 Cal.App.4th 820, review granted 11/19/2014 (S221958/E054056), which presents the following issue: Was the jury properly instructed on the “kill zone” theory of attempted murder?

See also this post California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine

Blog

Is Larcenous Intent an Element of Robbery?

For decades CALJIC 9.40 has relied on the literal language of PC 211 to define the specific intent required for robbery as an intent to permanently deprive the possessor of the property that is taken. However, this definition is erroneous because robbery requires an intent to steal which is defined as an intent to permanently deprive the owner – not the posssessor — of the property. (See e.g., People v. Ford (1964) 60 Cal.2d 772, 792-793 [judge must go beyond the literal language of PC 211 to include specific intent to steal when defining robbery by giving former CALJIC No. 72-B “even without a request therefore by defendant”].) Former CALJIC No. 72-B provided, inter alia, as follows:

…[I]n the crime of robbery, a necessary element is the existence in the mind of the perpetrator of the specific intent to permanently deprive an owner of his property; and, unless such intent so exists, that crime is not committed.” [Emphasis added] (People v. Spencer (1963) 60 Cal.2d 64, 87.)

Subsequent appellate decisions have confirmed that Spencer, Ford, and former CALJIC No. 72-B correctly defined the mens rea of robbery. Some of the more recent decisions that do so include the following:

— People v. Williams (2013) 57 Cal.4th 776, 786-787 — “Because California’s robbery statute (PC 211) uses the common law’s phrase “felonious taking,” and because at common law “felonious taking” was synonymous with larceny, we conclude that larceny is a necessary element of robbery.”

— People v. Anderson (2011) 51 Cal.4th 989, 1002 [Justice Kennard asserts that “[r]obbery includes the mental element necessary to prove theft, the specific intent to permanently deprive the owner of the property” and then observes: “No one disputes this here.”].)

— People v. Bacon (2010) 50 Cal.4th 1082, 1117 [“Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property.”]

— People v. Chun (2009) 45 Cal.4th 1172, 1183-1184 [the intent-to-permanently-deprive requirement, although nonstatutory in the limited sense that no California statute uses those words, is based on statute.]

— People v. Aguilera (2016) 244 Cal.App.4th 489, 502 [“Here, the jury was properly instructed pursuant to CALCRIM No. 1600 that the requisite intent for robbery existed if the defendant intended ‘to deprive the owner of [the property] permanently….’ ”]

Moreover, consistent with the above case law, the CALCRIM instruction defining robber [CC 1600] requires an intent to permanently deprive the owner.

And, in its February 2016 revision to the Bench Notes for CC 625 the committee reaffirmed the intent to deprive the owner element by revising to Bench Notes to replace intent to “take property by force or fear” with intent to “deprive the owner of the property.”

See also this post: CC 1600 Robbery: Intent To Apply Force Is Not An Element

Blog

CC 548: Murder Alternative Theories — 2016 Revision

Prior to 2016 CC 548 simply informed the jurors that: “You do not need to agree on the same theory [of murder].” However, in People v. Sanchez (2013) 221 Cal.App.4th 1012, 1025 recognized that giving such an instruction may be reversible error if the different theories of guilt result in different degrees of guilt:

Unanimity was required in this case as to the theory of guilt as a result of different theories supporting different degrees of murder. The prosecutor understood the need for      unanimity at the time he requested instructions on natural and probable consequences, specifically telling the trial court the jury could return a verdict of murder in the first or second degree, depending on what theory they unanimously agreed upon.

(Sanchez, 221 CA4th at 1025.)

Accordingly, in 2016 CC 548 was revised as follows:

You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory[, but you must unanimously agree whether the murder is in the first or second degree].

The Committee notes state: “The brackets around the new language indicate that it is optional, to be given in the court’s discretion.”

See https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3

Blog

CC 207: Proof Need Not Show Actual Date: Exception When Evidence Focuses on One Day to Exclusion of Others

“[W]hen the prosecution’s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), [that] it is improper to give the jury an instruction using the ‘on or about’ language.” (People v. Jennings (1991) 53 Cal.3d 334, 358–359; People v. Gavin (1971) 21 Cal.App.3d 408, 416-17; see also, this post “On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense.)

This rule was further discussed in People v. Rojas (2015) 237 CA 4th 1298,1304-06, which held that instructing on CC 207 was not error because the jury “expressed no confusion over the ‘on or about’ language in [CC 207], nor was there any evidence of uncharged criminal acts upon which the Count 1 conviction could have mistakenly been based.” [But see post dated Proof Need Not Show Actual Date: Ex Post Facto Violation]

Blog

Written Jury Instructions: Trial Procedure Note

Often the record below does not establish that the packet of instructions in the Clerk’s Transcript is the actual packet the jurors received (or an exact copy of the jurors’ packet). The Rules of Court do not expressly require that the written instructions be included in the Clerk’s Transcript. (See Rule 8.320; 8.610 for death cases.) However, it could be argued that they are required under Rule 8.320(b)(5) [8.610(a)(E) for death cases] which requires inclusion of “Any written communication between the court and the jury….” Certainly a written jury instruction qualifies as a written communication between the court and jury.

In light of the potential confusion in the appellate record as to what written instructions the jurors actually received, trial counsel may wish to protect the record in some manner; e.g., by offering an exact copy of that packet as a “Court Exhibit” or by specifically requesting on the record that the actual packet be preserved by the Clerk and that the chain of custody of that custody be noted in the record.

In the absence of a clear and certain record as to exactly which instruction packet the jurors received, appellate counsel may be at a disadvantage in evaluating and raising certain jury instruction issues. For example, in People v. Rojas (2015) 237 CA 4th 1298,1305 counsel had reason to believe that an important unanimity instruction had been omitted from the jury’s packet. However, because a supplemental Clerk’s Transcript indicated that the written unanimity instruction was given to the jurors appellate counsel was placed in a position of having to “prove the instruction was left out of the jury’s packet of written instructions.” (Ibid.) Had the actual instruction packet been properly preserved counsel could easily have resolved the conflict regarding whether or not the jury actually did receive the unanimity instruction.

Blog

No Written Instruction? Oral Instruction Not Vitiated

This post “Variance Between Reporter’s Transcript And Written Instructions” discussed which instruction controls – for purposes of appellate review – when the written and oral versions of the instruction are different.

A corollary issue arises when a particular instruction was completely omitted from either the written or oral versions of the instruction. In People v. Rojas (2015) 237 CA4th 1298,1305 the defendant contended that an important instruction on juror unanimity was given orally but not included in the packet of the written instructions given to the jury.

The Court of Appeal resolved the question as follows:

California requires augmentation of oral instructions with written instructions only upon request [citation], and even then, the omission of a written instruction does not vitiate its oral counterpart. [Citation.] Rojas acknowledges  that a unanimity instruction was provided orally as to Count 1, and we presume the jury heard the instruction and followed it accordingly. [Citation.]   (Rojas at 1305-06.)

Blog

The Judge Erroneously Gave the Jury a Supplemental Jury Instructions Without First Consulting with Counsel

In People v. Brown (2016) 247 CA4th 211 the not guilty verdict form for first degree murder had been signed and dated, but the signature and date had been crossed out and the words “withdrawl [sic]” and “void” were written across it. Without consulting counsel or making counsel aware of the situation, the judge sent the jury a note and a new not guilty form asking it to sign and date the appropriate form for the verdict they had reached.

The Court of Appeal concluded that the trial court erred by giving a supplemental jury instruction to the deliberating without consulting with counsel. A court should not entertain communications from the jury except in open court, with prior notification to counsel. A defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case. Counsel may have been able to suggest instructions that would amplify, clarify, or modify the court’s instruction.

Blog

FAVORABLE KILL ZONE CASE

In People v. Falaniko, No. B259918, 2016 Cal. App. LEXIS 632, at *14-15 (Ct. App. July 29, 2016) there was evidence that the defendant shot into a building, but no evidence that he intended to kill everyone inside or that two of the victims were in fact inside. The reviewing court held that there must be actual evidence that the defendant’s intent was to kill everyone in the vicinity, such an intent cannot just be assumed:

A conviction for attempted murder under a kill zone theory requires evidence that the defendant created a kill zone; that is, while targeting a specific person he attempted to kill everyone in the victim’s vicinity, or he indiscriminately sought to kill everyone in a particular area without having any primary target. [Citation.] In addition, before a defendant may be convicted of attempted murder under a kill zone theory, the evidence must establish that all the victims were actually in the kill zone. [NF]