SERIES 1600 ROBBERY AND CARJACKING
F 1600.6 Robbery—Defense Theories
TABLE OF CONTENTS
F 1600.6 Inst 1 (a & b) Robbery: Pinpoint Instruction On After Acquired Intent; Correction Of Burden Shifting Language
Return to Series 1600 Table of Contents.
F 1600.6 Robbery—Defense Theories
F 1600.6 Inst 1 (a & b) Robbery: Pinpoint Instruction On After Acquired Intent; Correction Of Burden Shifting Language
*Replace CC 1600, paragraph 3, with the following:
Alternative a:
[Replace with CJ 9.40.2.]
Alternative b [CC 3400 Format]:
To convict the defendant of robbery, you must find that [he] [she] had the specific intent to steal before or at the time of the application of force or violence, or the use of fear or intimidation.
The defendant contends that any intent to permanently deprive the owner of the property was formed after the application of force or fear upon the victim. The defendant does not need to prove this contention. If after consideration of all the evidence you have a reasonable doubt that defendant had the required intent at the time the force or fear was applied, you must find [him] [her] not guilty of robbery.
Alternative c [Modified version of CC 1600, paragraph 3] [added language is underlined; deleted language is stricken]:
*Replace CC 1600, paragraph 3, with the following:
The prosecution must prove beyond a reasonable doubt that the defendant’s intent to take the [property] [_______________ <description of property>] must have been was formed before or during the time (he/she) used force or fear. If you have a reasonable doubt about whether the defendant did not formed this required intent until after before using the force or fear, then (he/she) did not commit robbery.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
After-Acquired Intent As Defense Theory – The courts have consistently focused upon the application of force or fear as the essence of robbery. (Wilkoff v. Superior Court (1985) 38 C3d 345, 351; People v. Ramos (1982) 30 C3d 553, 589; People v. Ramkeesoon (1985) 39 C3d 346, 351; People v. Green (1980) 27 C3d 1, 54; People v. Turner (1990) 50 C3d 668, 688.) CJ 9.40.2 erroneously focuses upon the “taking” and thus removes the proper element from the jury’s consideration in violation of the federal constitution. (6th and 14th Amendments.) Thus, where there is evidence that the intent to steal was formed after the application of force, the defendant is entitled “upon request” to a pinpoint instruction informing the jury that it may not convict of robbery if the intent to steal arose after the assault. (People v. Webster (1991) 54 C3d 411, 443; see also People v. Bradford (1997) 14 C4th 1005, 1055-57 [failure to instruct on theft based on after-acquired intent was reversible error as to robbery conviction]; but see People v. Seaton (2001) 26 C4th 598, 673-674 [if defendant first attacked victim without the intent to steal, and he then decided to steal and kill the victim to achieve that goal, he was guilty of robbery].)
However, the CALCRIM pinpoint instruction on this issue erroneously shifts the burden of proof to the defendant by stating: “If the defendant did not form this required intent until after using the force or fear, then (he/she) did not commit robbery.” (CALCRIM 1600, paragraph 3, sentence 2.) Such burden shifting language should not be used. (See FORECITE F 404.2 Inst 1.)
The above proposed replacement for the CALCRIM instruction is adapted from CC 3400 [alibi] and CJ 4.50 which has been expressly approved as a proper pinpoint instruction. (See People v. Wright (1988) 45 C3d 1126, 1137-41; see also FORECITE PG III(A).)
Replacement Of CC Definition With CJ 9.40.2 – CALJIC’s instruction on after acquired intent is more complete than CALCRIM’s. See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 5:10, Other Comments, p. 327. When appropriate the judge should consider mixing CALCRIM and CALJIC instructions. (See FORECITE PG XI(C)(1).)
NOTES
Even though a pinpoint instruction on after-formed intent must be requested, substantial evidence of such a theory requires sua sponte instruction upon all lesser-included offenses. (Webster, 54 C3d at 443-44.) In Webster, the lesser offenses were attempted robbery, grand theft from the person, grand theft and petty theft. (Id. at 443.)
[See also FORECITE F 1602.2 Inst 1.]
CALJIC NOTE: See FORECITE F 9.40e / 9.40.2a.
F 1600.7 Robbery—Preliminary Fact Issues[Reserved]
F 1600.8 Robbery—Unanimity/Duplicity/Multiplicity [Reserved]
F 1600.9 Robbery—Lesser Offense Issues[Reserved]
