Category Archives: Blog

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Kidnapping for Ransom: Court Of Appeal Identifies Errors In CC 1202

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People v. Eid (2010) 187 Cal. App. 4th 859, 878, concluded that CC 1202 fails to clearly inform the jury that, to prove a defendant guilty of kidnapping for ransom, the People must prove, inter alia, (1) that the victim did not consent to the confinement, concealment, or other predicate act, and (2) where applicable, that the defendant did not actually and reasonably believe that the victim consented to the predicate act. CC 1202 also fails to instruct the jury on the corresponding ‘defenses’–I.e., that the defendant is not guilty if the primary victim consented to the predicate act of if the defendant reasonably believed the victim consented, and that the People still bear the burden of proving the elements that these defenses negate. [emphasis in original]

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Grossly Negligent Shooting Of Firearm: Defense Theory Of Belief That Gun Was Unloaded

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If the defendant actually believed that the firearm he or she discharged was unloaded, the defendant has not violated this statute. (People v. Robertson (2004) 34 Cal. 4th 156.) However, Robertson was overruled in People v. Chun (2009) 45 Cal. 4th 1172, as follows:

 

To avoid the anomaly of putting a person who merely intends to frighten the victim in a worse legal position than the person who actually intended to shoot at the victim, and the difficult question of whether and how the jury should decide questions of merger, we need to reconsider our holdings in Robertson, supra, 34 Cal. 4th 156, and Randle, supra, 35 Cal. 4th 987. When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An “assaultive” felony is one that involves a threat of immediate violent injury. (See People v. Chance (2008) 44 Cal. 4th 1164, 1167-1168 [81 Cal.Rptr.3d 723].) In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. For example, in People v. Smith, supra, 35 Cal.3d at page 806, the court noted that child abuse under section 273a “includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” Looking to the facts before it, the court decided the offense was “of the assaultive variety,” and therefore merged. (Smith, supra, 35 Cal.3d at pp. 806-807.) It reserved the question whether the nonassaultive variety would merge. (Id. at p. 808, fn. 7.) Under the approach we now adopt, both varieties would merge. This approach both avoids the necessity of consulting facts that might be disputed and extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive.

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In-Custody Informant

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If the witness is an in-custody informant, CC 336 should be given upon request, as well as CC 337, which cautions jurors not to consider the reason the witness is in custody. Regarding CC 337, the Court of Appeal has held this instruction should not be given unless the shackles are visible to the jury, and, when relating to a defendant, it should be given only when requested by the defense. (People v. Cortes (2011) 192 Cal. App. 4th 873, 915.)

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Kidnapping During Carjacking

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People v. Ortiz (2012) 208 Cal. App. 4th 1354,, upheld CC 1204 which deals with kidnapping during a carjacking. The Court of Appeal rejected the defendants’ arguments that the court should have instructed that the offense of kidnapping during a carjacking requires that the purpose of the kidnapping was to facilitate a carjacking and, in addition, that the offense is not committed if the carjacking is merely incidental to the kidnapping. (Id. at 1367-70.)

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Instructing on Character Versus Honesty

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In revising CC 350 in August of 2012, the CC Committee stated that “A judge noticed that the instructions for filling in the blanks for “insert character trait” in [CC 350], Character of Defendant, could pose a problem if the trait in question were honesty. Character evidence must be relevant to the charged offenses, and honesty may or may not be relevant.” The Committee addressed the problem by revising the instructions for filling in the blanks and adding an explanatory bench note and case cite. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of August 31, 2012, p. 3.)

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Kidnapping: Substantial Distance Is Merely One Of Several Factors To Consider

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People v. Bell (2009)179 Cal. App. 4th 428, held that the wording of a portion of CC 1215 was erroneous.

 

“Without further explanation of what distance is ‘merely incidental’ to the associated crime, a jury could easily interpret the instruction to require a jury to acquit a defendant of kidnapping because the movement was compelled ‘in the course of committing the associated crime, regardless of the increased risk of danger to the victim, or, for that matter, that the distance was ‘substantial’ by any reasonable measure.” (People v Bell (2009) 179 Cal. App. 4th 428, 440.)

 

 

However, “if the incidental movement paragraph were to be interpreted in that fashion, it would be an incorrect statement of the law” because “whether the movement was over a distance merely incidental to an associated crime is simply one of several factors to be considered by the jury (when permitted by the evidence) under the ‘totality of circumstances,’. . .[and] is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement as the current wording of the incidental movement paragraph of [CC 1215] now suggests.”

 

Bell offered the following suggested re-wording of CC 1215:

 

Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the [distance the other person was moved was beyond that merely incidental to the commission of the crime of evading a police officer,] whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, [or] gave the [defendant] a greater opportunity to commit additional crimes.” (Id. at 440-41.)

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CC 852 Comparable To CC 1191

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People v. Johnson (2008) 164 Cal. App. 4th 731, 739, observed that CC 852 tracks the language of EC § 1109 in the same way that CC 1191 tracks the language of EC § 1108 regarding evidence of uncharged sex offenses. Therefore, because CC 1191 does not undermine the People’s burden of proving the charges against the defendant by proof beyond a reasonable doubt, the same rationale should apply in the context of CC 852. (Ibid.)

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CC 852 Equivalent To CJ 250.02 Re: Other Crimes

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People v. Reyes (2008) 160 Cal. App. 4th 246, 251, noted that CJ 2.50.02 had been upheld numerous times as adequately explaining how the jury should consider other crimes. Reyes concluded that the reasoning of cases upholding the CJ instruction applied equally to CC 852. “In fact [CC 852] is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury.”