When supported by substantial evidence, the defense has the right, upon request, to a defense theory instruction which focuses on the prosecution’s burden to prove that the defendant actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person. (People v. Nordberg (2010) 189 Cal. App. 4th 1228, quoting People v. Holford (1965) 63 Cal. 2d 74, 79.)
In People v. Samaniego (2009) 172 Cal. App. 4th 1148, the defendant argued that it was improper to instruct the jury with CC 1403 because it allowed the jury to consider gang expert testimony as to motive and witness credibility under the optional clauses of CC 1403.
The Court of Appeal disagreed stating that “[g]ang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. [Citation.] [B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds it prejudicial effect, and wide latitude is permitted in admitting evidence of its existence. [Citations.]. . .[and] Gang evidence is also relevant on the issue of a witness’s credibility.” (Id. at 1167-1168.)
Thus, the court concluded:
[CC1403], as given here, is neither contrary to law nor misleading. It states in no uncertain terms that gang evidence is not admissible to show that the defendant is a bad person or has a criminal propensity. It allows such evidence to be considered only on the issues germane to the gang enhancement, the motive for the crime and the credibility of witnesses. (Id at. 1168.)
A “billy,” as used in PC 22210, does not need to be defined. (See People v. Davis (2013) 214 Cal. App. 4th 1322, 1330.)
People v. Stallworth (2008) 164 Cal. App. 4th 1079, concluded that CC 401 is neither confusing nor incomplete provided that CC 220 is also given so that the jury understands that the reasonable doubt standard applies to an aider and abettor’s knowledge.
However, the defense should have the right to an instruction pinpointing its theory that the required knowledge element was not proved beyond a reasonable doubt. (See Forecite PG ***)
People v. Pitto (2008) 43 Cal. 4th 228, rejected the “facilitative nexus” set forth by the Court of Appeal which had been adopted by both CC and CJ. Under People v. Pitto, “[w]hen (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission.” (Id. at 240.)
Under People v. Pitto, “[i]t doesn’t matter whether, at the particular moment he knowingly placed the gun where it was available for such criminal use, he did so for reasons unrelated to drug possession or trafficking. Regardless of his original motive, the opportunity and incentive to later resort to using the gun in perpetrating the crime is the same. And his deliberate placement of the gun and drugs in juxtaposition to each other negates any claim of accident or coincidence.” (Ibid.)
The CC Committee has indicated that it believes that the pre-California Supreme Court People v. Pitto opinion version of CC 3115 is correct. (Advisory Committee on Criminal Jury Instructions Report (Oct. 10, 2008), at p. 147.)
The United States Supreme Court has held that the Second Amendment guarantees an individual’s right to bear arms. (District of Columbia v. Heller (2008) 554 U.S. 570.) Although the court articulated an exception for felons, the defense position is that this exception does not apply to armed enhancements. The Second Amendment’s protection of the right to bear arms should apply to preclude enhancements for merely being armed, as opposed to actually using a weapon in the commission of the offense.
CC 3148 is used for the enhancement of personally using a firearm and intentionally discharging it under California’s 10-20-Life Law, PC § 12022.53(c). A defendant can be found liable under this statute even if due to the firearm’s malfunction, the discharge does not result in a projectile being expelled from the gun. (People v. Grandy (2006) 144 Cal. App. 4th 33.)
People v. Dunkerson (2007) 155 Cal. App. 4th 1413, upheld CC 3160 in the “group beating” situation. Dunkerson found that CC 3160 in the “group beating” context was not materially different from CJ 17.20, and that CJ 17.20 had been upheld by the California Supreme Court. Dunkerson held that CC 3160, the same as CJ 17.20, “as it relates to whether a defendant personally inflicted great bodily injury in a group attack, is proper when the defendant personally uses force against the victim and the precise injurious effect of the defendant’s actions is unclear.” (Id. at 1414, 1418.)
The February, 2012, revision of CC 101 modified the section in the second to last paragraph emphasizing to the jury that “it may not use any form of research or communication. . ..” The February, 2012, revision also added in brackets the section in the second to last paragraph telling jurors that if they violate the rule barring research or communication, they “may be subject to jail time, a fine, or other punishment.” The CC Committee explained that in 2011 legislation was enacted amending CCP § 1209(a) to define contempt of court to include “[w]illful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.” The Committee explained that the 2012 revision was made to “admonish jurors not to violate the prohibitions on communications and research, including prohibitions on electronic communications and research. Optional bracketed language, to be used in the court’s discretion, admonishes further that violations may result in jurors being held in contempt of court.” (Fn. 7–Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 28, 2012, pp. 2-3.)
People v. Poroj (2011) 190 Cal. App. 4th 165, 168, upheld CC 3160, finding that the instruction correctly explained that the enhancement for personally inflicting great bodily injury in PC § 12022.7, “does not require a showing of intent to inflict GBI, separate or apart from the intent required to commit the felony or attempted felony for which the enhancement provision prescribes additional punishment.” (Ibid.) Poroj held that “the statute only requires a showing that defendant ’personally inflict[ed]’ great bodily injury ‘in the commission of a felony or attempted felony. . . .’(§ 12022.7, subd. (a).) Thus, the only intent required to support a GBI enhancement under section 12022.7, subdivision (a) is the intent required to commit the underlying felony or attempted felony.” (Ibid., but see contrary cases cited by Poroj at p. 175.)