Category Archives: Blog

CC Imperfect Self Defense Instruction: Error Identified By Court Of Appeal

 

People v. Por Ye Heri (2009) 181 Cal. App. 4th 349, identified the following error in CC 571: “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense. . .]Citation.] Where, as in the CC instructions, the ‘belief in the need to defend’ is described as two beliefs–(1) the belief in imminent danger of death or great bodily injury; and (2) the belief in the need to use deadly force to defend against that danger–the unreasonableness of either belief would be sufficient to transform perfect self-defense into imperfect self-defense.”

Whether Defendant May Be Convicted Based Only on an Admission/Confession

 

CC 359 is deficient to the extent it lends itself to an interpretation that criminal defendants could be convicted on the basis of extrajudicial statements alone that they committed a crime. (People v. Rivas (2013) 214 Cal. App. 4th 1410.) The first paragraph of CC 359 correctly informed the jury that, “A defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crimes were committed.” However, the instruction’s third paragraph told the jury that, “The identity of the person who committed the crimes and the degree of the crimes may be proved by the defendant’s statement alone.” The reviewing court complained that “It may well be that in the third paragraph of [CC 359] the drafters intended simply to convey the idea that identity is not part of the corpus delicti rule which requires corroboration. But they did so in a most unfortunate way.” The Court of Appeal urged the drafters of the CC to reconsider its wording.

 

However, another court decision concluded that CC 359 accurately states the law concerning proof of identity by a defendant’s extrajudicial statements. (People v. Rosales (2014) 222 Cal. App. 4th 1254, 1259-1260.)

Duress Is Not a Defense to Murder

 

Duress is not a defense to murder, and will not reduce murder to manslaughter. (People v. Burney (2010) 47 Cal. 4th 203.) However, duress may negate the deliberation or premeditation required for first degree murder, and a modified version of this instruction may be appropriate if warranted by the circumstances of a case. (CCJICH § 3:5, p. 121; See also this post Felony Murder: Applicability Of Duress To Underlying Felony.)

CC 3471 Is Superfluous When Self Defense Instructions (CC 3470, CC 3472, CC 3474) Are Given

 

CC 3471, explaining to the jury when a defendant engaged in mutual combat can lawfully use force in self-defense, need not be given when the jury is already being provided standard self defense instructions, such as CC 3470, CC 3472, and CC 3474. As People v. Johnson (2009) 180 Cal. App. 4th 702, explained, CC 3471 merely charges the jury to make a preliminary determination when a defendant engaged in mutual combat can use self-defense; but if the instructions provided already assume that self defense can be used, CC 3471 is superfluous.

CC 3425 Unconsciousness: Improper Presumption of Consciousness

 

In response, CC 3425 was revised. As explained by the Committee, “In People v. Mathson, [] the Court of Appeal concluded that because the instruction’s standard concluding language on reasonable doubt said ‘if, however’ instead of ‘unless,’ it was ‘unnecessarily ambiguous.’ The court also suggested adding an explanation that only involuntary intoxication is the basis for a valid defense.” The committee responded to both of these suggestions with the proposed revisions in the current draft. (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 5.)

 

However, there is a flaw in the new instruction. The CC states, “[i]f there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious.” No authority is cited in support of this sentence. To the contrary, one of the cases cited as Authority by CC says: “‘Unconsciousness,’ as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist–and the above-stated rule can apply–where the subject physically acts in fact but is not, at the time, conscious of acting.” “ If unconsciousness can be found where the defendant physically acts conscious in fact, then the jury cannot accurately be told that if they find that the defendant acted as if he were conscious,  the jury should conclude that the defendant was conscious. Instead of the erroneous sentence, the sentence from the Newton case should be given to the jury.” (CCJICH (2014-2015 §3:5, pp. 110-111.)

 

Court of Appeal Identifies Flaws in Unconsciousness Instruction

People Mathson (2012) 210 Cal. App. 4th 1297, disapproved CC 3425 with respect to the portion that reads, “If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was legally conscious.” The Court of Appeal noted two problems: (1) The instruction is ambiguous because “it could mean that the jury is only to consider whether there is reasonable doubt based on the other evidence if it finds that a defendant acted as if he was not conscious.” (Id. at 1323.) (2) “[I]nstead of telling the jurors they must find the defendant unconscious if they have a reasonable doubt that the defendant conscious, the final sentence directs the jurors to find the defendant not guilty. As we have discussed, in an intoxication case, a defendant who was unconscious must be found not guilty only if the intoxication was involuntary. A defendant who was unconscious may still be found guilty if the intoxication was voluntary. Because the last sentence compels the jury to reach a not guilty verdict instead of compelling a finding regarding consciousness, that sentence is potentially confusing.” (Ibid.)

Mere Knowledge and “Failure to Prevent” Instructions

 

Failure to prevent a crime is not enough to make a person an aider and mere knowledge that another is going to commit a crime is not enough to make a person an aider. “Neither his mere presence at the scene of the crime nor his failure, through fear, to prevent a crime establishes, without more, that an accused was an abettor.” (People v. Boyd (1990) 222 Cal. App. 3d 541, 556-557.) “Thus, we conclude that the weight of authority and sound law require proof than an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Berman (1984) 35 Cal. 3d 547, 560.)

 

Thus, the jury must be told: preferably by instruction, but by argument if necessary–that:

 

(1) Failure to prevent a crime does not establish, without more, that the defendant is an aider and abettor.

 

(2) Mere knowledge of the purpose of the perpetrator does not establish that the defendant is an aider and abettor.

Natural and Probable Consequences: Aider and Abettor Need Not Reasonably Foresee Attempted Murder

 

People v. Favor (2012) 54 Cal. 4th 868, 879-880, held that when applying the natural and probable consequences doctrine to a premeditation allegation under PC 664(a), the jury must initially find that an aider and abettor committed an attempted murder. The jury then must determine if the attempted murder was willful, deliberate, and premeditated. Therefore, there is no requirement that the aider and abettor reasonably foresaw an attempted premeditated murder. Attempted murder need only be a reasonably foreseeable consequence of the crime aided and abetted, and the attempted murder itself was committed willfully, deliberately, and with premeditation.