SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 417.4 LIABILITY FOR CO-CONSPIRATORS’ ACTS: BURDEN OF PROOF ISSUES
F 417.5 LIABILITY FOR CO-CONSPIRATORS’ ACTS: ELEMENTS
F 417.6 LIABILITY FOR CO-CONSPIRATORS’ ACTS: DEFENSE THEORIES [RESERVED]
F 417.7 LIABILITY FOR CO-CONSPIRATORS’ ACTS: PRELIMINARY FACT ISSUES [RESERVED]
F 417.8 LIABILITY FOR CO-CONSPIRATORS’ ACTS: UNANIMITY/DUPLICITY/MULTIPLICITY [RESERVED]
F 417.9 LIABILITY FOR CO-CONSPIRATORS’ ACTS: LESSER OFFENSE ISSUES [RESERVED]
TABLE OF CONTENTS
F 417.4 LIABILITY FOR CO-CONSPIRATORS’ ACTS: BURDEN OF PROOF ISSUES
F 417.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 417.4 Inst 2 (a & b) Relating Alleged Co-Conspirator Membership In The Conspiracy To Presumption Of Innocence
F 417.4 Inst 3 Relating Acts Done After Accomplishment Of Conspiracy Goals To Presumption Of Innocence
F 417.4 Inst 4 Natural And Probable Consequences: Circumstances “Established By The Evidence”
F 417.4 Inst 5 Common Plan Or Natural And Probable Consequences: Modification Of Burden Shifting Language
F 417.5 LIABILITY FOR CO-CONSPIRATORS’ ACTS: ELEMENTS
F 417.5 Inst 1 Membership In Conspiracy As Misleading Terminology
F 417.5 Inst 2 Definition Of Natural And Probable Consequences: Incorporate In Enumerated Elements
F 417.5 Inst 3 Tailoring; Requiring Finding That Defendant And Alleged Co-Conspirators Are Guilt Of Underlying Conspiracy
F 417.5 Inst 4 Natural And Probable Consequences: Specification Of Target Offense
F 417.6 LIABILITY FOR CO-CONSPIRATORS’ ACTS: DEFENSE THEORIES [RESERVED]
F 417.7 LIABILITY FOR CO-CONSPIRATORS’ ACTS: PRELIMINARY FACT ISSUES [RESERVED]
F 417.8 LIABILITY FOR CO-CONSPIRATORS’ ACTS: UNANIMITY/DUPLICITY/MULTIPLICITY [RESERVED]
F 417.9 LIABILITY FOR CO-CONSPIRATORS’ ACTS: LESSER OFFENSE ISSUES [RESERVED]
Return to Series 400 Table of Contents.
F 417.4 Liability for Co-Conspirators Acts: Burden Of Proof Issues
F 417.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 417.4 Inst 2 (a & b) Relating Alleged Co-Conspirator Membership In The Conspiracy To Presumption Of Innocence
*Modify CC 417, paragraph 6 as follows:
Alternative a:
If you have a reasonable doubt whether the other person [was a member of the alleged conspiracy] [conspired with defendant to commit the crime of _________], you must not hold defendant responsible for any acts or crimes committed by the other person.
Alternative b:
Even if the acts of _____________ (name of alleged co-conspirator) helped accomplish a goal of the conspiracy, the defendant is not responsible for __________ (name of alleged co-conspirator) acts if you have a reasonable doubt whether [he] [she] [conspired with defendant] [was a member of the alleged conspiracy].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Instruction On Defense Theory That Alleged Co-Conspirator Was Not A Member Of The Conspiracy—If it is a defense theory that the alleged co-conspirator was not a member of the conspiracy, then an instruction relating that theory to the presumption of innocence should be given on request. (See FORECITE F 315.1.2 Inst 2.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.4 Inst 3 Relating Acts Done After Accomplishment Of Conspiracy Goals To Presumption Of Innocence
*Add to enumerated elements:
4. The alleged _______________ <insert non-target crime[s]> was committed before the _______________ <insert target crime[s]> [was] [were] committed.
*Modify CC 417, paragraph 7, as follows [added language is underlined; deleted language is stricken]:
[A conspiracy member is not responsible for If you have a reasonable doubt that the acts an act of another conspiracy member that are was done after before the goal of the conspiracy had been accomplished, you must not hold the defendant responsible for that act.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—An essential element of criminal liability based on the act of a co-conspirator is that the act be committed before the object of the conspiracy has been accomplished. (People v. Samuels (2005) 36 C4th 96, 121.) However, CALCRIM 417 fails to relate this requirement to the prosecution’s burden of proof because it is not an enumerated element. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348].)
See also FORECITE F 418.4 Inst 4.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 13 [Additional Constitutional Grounds For Death Cases]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.4 Inst 4 Natural And Probable Consequences: Circumstances “Established By The Evidence”
* Modify CC 417, paragraph 3, sentence 2, as follows [deleted language is stricken]:
In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
Points and Authorities
See FORECITE F 402.4 Inst 2.
F 417.4 Inst 5 Common Plan Or Natural And Probable Consequences: Modification Of Burden Shifting Language
*Modify CC 417, paragraph 4, as follows [added language is underlined; deleted language is stricken]:
A member of a person who has committed the crime of conspiracy is not criminally responsible for the act of another member a co-conspirator if unless that act does not furthered the common plan or is not and was a natural and probable consequence of the common plan.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Burden Shifting—The CALCRIM language improperly implies an obligation on the part of the defendant to disprove essential elements of the offense. (See FORECITE F 404.2 Inst 1.)
“Co-conspirator” vs. “Member”—See FORECITE F 417.3 Inst 2.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.5 Liability for Co-Conspirators Acts: Elements
F 417.5 Inst 1 Membership In Conspiracy As Misleading Terminology
See FORECITE F 417.3 Inst 2.
F 417.5 Inst 2 Definition Of Natural And Probable Consequences: Incorporate In Enumerated Elements
*Replace CC 417, Element 3, with the following:
A reasonable person in the defendants situation, and knowing what the defendant knew, would have known that _______________ <insert non-target offense> (was/were) likely to happen as a result of the common plan or design of the _______________ <insert target offense> if nothing unusual intervened.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Definitions Into Elements—Definitions should be incorporated into the enumerated elements to which they relate. (See CALCRIM Users Guide, p.2, “Titles And Definitions.” ) Otherwise, there is a danger the jurors will not consider the definition as part of the element. (See generally People v. Danks (2004) 32 C4th 269 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.5 Inst 3 Tailoring; Requiring Finding That Defendant And Alleged Co-Conspirators Are Guilt Of Underlying Conspiracy
See FORECITE F 417.2 Inst 1.
F 417.5 Inst 4 Natural And Probable Consequences: Specification Of Target Offense
*Modify CC 417, Element 3, as follows [added language is underlined; deleted language is stricken]:
. . . of the common plan or design of the crime _______________ <insert target offense> that the defendant conspired to commit.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Tailoring Instructions To Facts—See FORECITE F 400.2 Inst 1.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.7 [Failure To Tailor Elements To The Facts And Charge]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 417.6 Liability for Co-Conspirators Acts: Defense Theories[Reserved]
F 417.7 Liability for Co-Conspirators Acts: Preliminary Fact Issues[Reserved]
F 417.8 Liability for Co-Conspirators Acts: Unanimity/Duplicity/Multiplicity [Reserved]
F 417.9 Liability for Co-Conspirators Acts: Lesser Offense Issues[Reserved]
