Category Archives: Blog

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Marijuana Distribution: Minimal Movement as Defense Theory

CC 2361 defines the term “transports” as carrying or moving an item from one location to another, even if the distance is short. However, minimal movement that does not facilitate use or trafficking does not qualify as transportation. The requirement of volitional transport of methamphetamine from one location to another avoids any unwarranted extension of the statute to restrained, minimal movement within a residence or other confined area that does not facilitate trafficking, distribution, or personal use of drugs. The jury should be instructed:

 

However, minimal movements within a residence or other confined areas that do not facilitate trafficking, distribution, or personal use of drugs is not enough to qualify a transportation.

                                                           

So long as there is substantial evidence supporting a defense theory, the judge must, if requested, instruct upon that theory. (People v. Panah (2005) 35 Cal. 4th 395, 484.)

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Gun Enhancement: Pinpoint Instruction where Defendant is not Present when Gun and Drugs are Discovered

CC 3131 (Related Issues)  suggests the use of a pinpoint instruction in the situation where the underlying felony is possession of narcotics and the defendant is not present at the time the drugs and firearm are recovered. The instruction is very similar to CJ 17.16.2, the CJ pinpoint instruction on this issue and closely tracks People V. Bland (1995) 30 Cal. 4th 991. In a case involving CC 2303 where the defendant is not present when the drugs and gun are found, the court could also instruct the jury with the pinpoint instruction suggested in CC 3131.

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Failure to Pay Taxes: “Substantial” Deficiency not Required

People v. Mojica (2006)139 Cal. App. 4th 1197, held that an earlier version of CC 2801 erroneously required a “substantial” tax deficiency or a failure to report a “substantial” amount of income. Mojica took issue with the CC requirement that the government must prove the existence of a “substantial” tax deficiency or the failure to report a “substantial” amount of income, finding that the authority cited by CC for this proposition was no longer good law.

 

The CC Committee subsequent to Mojica, modified CC 2801 to delete the “substantial” requirements and to cite in its Authority section People v. Mojica (2006) 139 Cal. App. 4th 1197, 1204, as authority.

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Escape: Merely Breaching Barrier not Sufficient

Justice Werdegar’s concurring opinion in People v. Bailey (2012) 54 Cal. 4th 740, 757, urged the committee to revise the jury instructions for escapes to make clear that an inmate does not commit escape merely by breaching a barrier enclosing a “designated area” of a prison or jail. (Id. at 757.)

 

If a defendant breaches the bars of his cell or another internal barrier, attempted escape is the proper charge. For attempted escape, the jury must find that the defendant acted with specific intent to escape. (See CC 460.)

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Definition of “Sharp Instrument”

People v. Hayes (2009) 171 Cal. App. 4th 549, commented on CC 2745’s Bench Notes reference to People v. Custodia (1999) 73 Cal. App. 4th 807, 810-81, to define “sharp instrument.” Hayes concluded that the proper definition of “sharp instrument” which should be given to the jury in these types of cases is that “[a] sharp instrument is an instrument that is sharp and that can be used to inflict injury and that is not necessary for the inmate to have in his possession.” (Hayes, supra, at 560.) In response to Hayes, the CC Bench note deleted its citation to Custodia and now no longer defines “sharp instrument.”

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Lawful Performance: Custodial Officer- -Use of “Reasonable” Force

People v. Gutierrez (2009) 174 Cal. App. 4th 515, identified the following problem with CC 2671:

 

Read literally, [CC 2671] authorizes a custodial officer to use reasonable force in four situations- -“to restrain a person, to overcome resistance, to prevent escape, or in self-defense”- -but erroneously limits to the first situation alone not only the prohibition against the defendant’s use of force or any weapon to  resist reasonable force but also the authorization of the defendant’s use of reasonable force to defend against unreasonable or excessive force.

 

The CJ instruction itself does not contain a provision dealing with the defendant using reasonable force to defend, but a separate CJ instruction does contain a self-defense provision. The CJ self-defense provision, unlike the version of CC 2671 disapproved in Gutierrez, does state that a defendant is allowed to use reasonable force to defend in every situation where an officer is using unreasonable force. (CJ 9.28.)

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Theft by False Pretenses: General Theft Instruction Is Improper

It is error not to give CC 1804, which covers theft by false pretenses, and to simply give CC 1800, the general instruction on theft by larceny. If the theory is a defendant committed a fraud, such as faking an accident, to acquire medical services and damages, then the proper instruction is one that covers theft by false pretenses. (See People v. Beaver (2010) 186 Cal. App. 4th 107, 122-124.)

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The Defendant Has No Burden Of Proof Re: Consent

The Related Issues to CC 1700 state that “consent by the owner or occupant of property may constitute a defense to burglary.” However, no instruction is provided for this purpose. The Court of Appeal in People v. Sherow (2011) 196 Cal. App. 4th 1296, disapproved a consent instruction put together by a trial judge because the judge incorrectly stated that the defendant had the burden of proving consent by a preponderance of the evidence. Sherow held that the burden was on the defendant to only raise a reasonable doubt regarding consent, but did not otherwise disapprove of the judge’s instruction. (Id. at 1309.) The judge’s instruction given in Sherow, modified to correctly allocate the burden of proof, may be used to instruct on consent in this context:

 

The defendant is not guilty of burglary if the occupant of the building consented to the defendant’s entry into the building.

 

In order to establish this defense, the defendant must raise a reasonable doubt regarding all of the following:

 

1. Prior to the defendant’s entry into the building, the occupant expressly gave to the defendant the occupant’s permission for the defendant to enter the building:

 

2. At the time that the occupant gave his or her permission, the occupant knew that the defendant intended to enter the building for the purpose either of committing a theft or selling stolen property; and

 

3. Prior to the defendant’s entry into the building, the defendant knew that the occupant was aware of the defendant’s illegal intention. (Id. at 1303.)

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Failure To Address Standard Of Proof

The modified instruction in Villatoro provided as follows:

 

The People presented evidence that the defendant committed the crime of rape as alleged in counts 2,4,7,9,12, and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes. [¶] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge. (People v. Villatoro (2012) 54 Cal. 4th 1152, 1167-1168.)

 

The court in Villatoro stressed that the trial court should use its discretion under EC § 352 to determine whether the other charged offenses are dissimilar enough, or so remote or unconnected to each other, that admission of them for propensity evidence would be too prejudicial. (Id. at 1167.) It is particularly inappropriate for the court to characterize a prior attempted kidnapping conviction as a prior “sexual offense” under EC § 1108. Courts also should not permit the jury to use sexual offense propensity evidence to find propensity to commit non-sexual offenses. (People v. Jandres (2014) 226 Cal. App. 4th 340, 358-359.)