SERIES 500 HOMICIDE
F 505.1 TITLES AND IDENTIFICATION OF PARTIES
F 505.2 SELF-DEFENSE: BURDEN OF PROOF
TABLE OF CONTENTS
F 505.1TITLES AND IDENTIFICATION OF PARTIES
F 505.1 Inst 1 Justifiable Homicide: Self-Defense or Defense of Another—Title
F 505.1 Inst 2 Identification Of Prosecution And Defendant
F 505.1 Inst 3 Delete “Justifiable Homicide” From Title
F 505.2 SELF-DEFENSE: BURDEN OF PROOF
F 505.2 Inst 1 Deletion Of Term “Justifiable Homicide” And Burden Shifting Language
F 505.2 Inst 2 Beliefs Were Unreasonable: Modification Of Burden Shifting Language; No Duty To Decide
F 505.2 Inst 3 Self-Defense: Expression Of Prosecution Burden In Terms Of “Self-Defense” Rather Than Justification
F 505.2 Inst 4 Antecedent Threats: Modification Of Burden Shifting Language
F 505.2 Inst 5 (a & b) Whether Danger Actually Existed: Modification Of Improper Burden Shifting Language
F 505.2 Inst 6 Whether Defendant Used Unreasonable Force: Modification Of Burden Shifting Language
Return to Series 500 Table of Contents.
F 505.1 Titles And Identification Of Parties
F 505.1 Inst 1 Justifiable Homicide: Self-Defense or Defense of Another—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 505.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 505.1.1 Inst 3 Delete “Justifiable Homicide” From Title
*Modify CC 505, Title, as follows [deleted language is stricken]:
Justifiable Homicide: Self-Defense or Defense of Another
Points and Authorities
See FORECITE F 500.2 Inst 3.
F 505.2 Self-Defense: Burden Of Proof
F 505.2 Inst 1 Deletion Of Term “Justifiable Homicide” And Burden Shifting Language
*Modify CC 505, paragraph 1, sentence 1 as follows [added language is underlined; deleted language is stricken]:
The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/[or] attempted voluntary manslaughter) if unless the prosecution proves beyond a reasonable doubt that (he/she) was justified in (killing/attempting to kill) someone did not act in (self-defense/ [and/or] defense of another) when (he/she) [allegedly killed _________________ <name of decedent/alleged victim>].
*Replace CC 505, sentence 2 and enumerated factors with:
Alternative a:
For purposes of considering whether the prosecution has met its burden of disproving (self-defense/ [and/or] defense of another), self-defense is defined as a killing in which the person who killed:
1. Reasonably believed that (he/she/ [or] someone else/ [or] _______ <insert name or description of third party>) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ _______ <insert other forcible and atrocious crime>)];
2. Reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
AND
3. Used no more force than was reasonably necessary to defend against that danger.
Alternative b:
To meet its burden of disproving (self-defense/ [and/or] defense of another) the prosecution must proof at least one of the following beyond a reasonable doubt:
1. Did not reasonably believe that (he/she/ [or] someone else/ [or] _______ <insert name or description of third party>) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ _______ <insert other forcible and atrocious crime>)];
2. Did not reasonably believe that the immediate use of deadly force was necessary to defend against that danger;
OR
3. Used more force than was reasonably necessary to defend against that danger.
CAVEAT: Element 3 requiring the force not being more than actually was necessary should be deleted. (See FORECITE F 505.2 Inst 4.)
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Deletion Of The Term “Justifiable:” See FORECITE F 500.2 Inst 3.
Burden Shifting Language: The language and sentence structure used in CC 505, paragraph 1, states the law in terms which imply that self-defense applies “if” the jury finds certain circumstances to have existed or been established. This burden shifting language is erroneous, and is not cured or vindicated by contrary language elsewhere in the instructions. (See FORECITE F 404.2 Inst 1; see also F 505.2 Inst 2.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 505.2 Inst 2 Beliefs Were Unreasonable: Modification Of Burden Shifting Language; No Duty To Decide
*Modify CC 505, paragraph 3, sentence 1, as follows [added language is underlined; deleted language is stricken]:
When deciding, if you can, whether the prosecution has proven that the defendant’s beliefs were not reasonable, consider all the circumstances as they were [known to] and [or] [ appeared to] the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
If you can: See FORECITE F 100.7 Inst 1.
Prosecution Must Prove Belief Was Not Unreasonable: It is constitutionally mandated that the prosecution “must prove beyond a reasonable doubt the absence of . . . self defense. . . .” (People v. Banks (1976) 67 CA3d 379, 384; see also People v. Sanchez (1947) 30 C2d 560, 571.) However, use of the conditional term “if”or “if you find” in the CALCRIM instruction improperly implies that the defendant has a burden to produce evidence sufficient to establish that he or she acted in self defense. [See FORECITE PG III(D) Improper To Instruct On Defense Burden To Produce Evidence Or To Suggest That Defense Must “Raise” Or “Create” A Reasonable Doubt.]
Known To Or Appeared To The Defendant: See FORECITE F 860.5 Inst 7.
Whether Danger Actually Existed: See FORECITE F 505.2 Inst 5.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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.
F 505.2 Inst 3 Self-Defense: Expression Of Prosecution Burden In Terms Of “Self-Defense” Rather Than Justification
*Modify CC 505, paragraph 11, sentence 1 as follows [added language is underlined; deleted language is stricken]:
The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified in (self-defense/ [and] [or] defense of another).
Points and Authorities
See FORECITE F 500.2 Inst 3.
F 505.2 Inst 4 Antecedent Threats: Modification Of Burden Shifting Language
*Add to and modify CC 505, paragraphs 5, 6, 7 & 8 as follows [added language is underlined; deleted language is stricken]:
In determining whether the prosecution has proven that the defendant’s conduct or beliefs were unreasonable consider all the circumstances including, but not limited to, the following __________ <insert only applicable factors>:
1. [If you find that Whether [the deceased] __________<insert name of decedent/victim> threatened or harmed the defendant [or others] in the past; you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]
2. [If you find that Whether the defendant knew that __________<insert name of decedent/victim> had threatened or harmed others in the past; you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]
3. [If you find that Whether the defendant received a threat from someone else that (he/she) reasonably associated with __________<insert name of decedent/victim>; you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).]
[Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Modification Of Burden Shifting Language – The CALCRIM language improperly implies that self defense is only applicable “if” the listed elements are proved to have occurred. Such language is improper because it implies that the jury must find that the defendant acted in self defense. (See FORECITE PG III(D) [improper to instruct the jury that the defendant must “raise” or “create” a reasonable doubt].) Indeed, the law clearly requires that the prosecution must prove that the defendant did not act in self defense. (See e.g. People v. Banks (1976) 67 CA3d 379, 383-84; see also CC 505 & CC 3470, last paragraphs and “AUTHORITY.”) Thus there is a logical inconsistency between the “if” language of CC 505 & CC 3470, Paragraph 1 and the burden language in the final paragraphs. Forecite’s suggested modification is intended to eliminate that conflict. (See generally Francis v. Franklin discussed in FORECITE PG X(E)(8.1) [Conflict Between Instructions Does Not Clarify Which Applies].)
Consider Vs. “May Consider” —See FORECITE F 105.2 Inst 1.
Listed Factors Not Exclusive—See FORECITE F 105.2 Inst 2.
Right To Antecedent Threat Instruction—See People v. Gonzales (1992) 8 CA4th 1658, 1664; see also FORECITE F 505.3 Inst 1; F 820.5 Inst 3.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 505.2 Inst 5 (a & b) Whether Danger Actually Existed: Modification Of Improper Burden Shifting Language
*Replace CC 505, paragraph 3, sentence 2, with the following:
Alternative a:
Unless the prosecution proves beyond a reasonable doubt that the defendant’s beliefs were unreasonable, self-defense applies regardless of whether or not the danger actually existed.
Alternative b:
Whether or not the danger actually existed is a factor to consider in evaluating the reasonableness of the defendant’s belief and conduct. However, even if the danger did not actually exist, this does not necessarily prove that the defendant’s beliefs were unreasonable.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
CALCRIM 505 prefaces reference to actual danger with: “If the defendant’s beliefs were reasonable…” This language improperly shifts the burden to the defendant. (See FORECITE F 505.2 Inst 2.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 505.2 Inst 6 Whether Defendant Used Unreasonable Force: Modification Of Burden Shifting Language
See FORECITE F 3470.2 Inst 5.
