SERIES 500 HOMICIDE
F 512 PRESUMPTION THAT KILLING NOT CRIMINAL
TABLE OF CONTENTS
F 512.1 TITLES AND IDENTIFICATION OF PARTIES
F 512.1 Inst 1 Presumption That Killing Not Criminal—Title
F 512.1 Inst 2 Identification Of Prosecution And Defendant
F 512.2 PRESUMPTION THAT KILLING NOT CRIMINAL—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 512.2 Inst 1 Improper Presumption That Killing Was Criminal
Return to Series 500 Table of Contents.
F 512.1 Titles And Identification Of Parties
F 512.1 Inst 1 Presumption That Killing Not Criminal— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 512.1 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 512.2 Presumption That Killing Not Criminal—Tailoring To Facts: Persons, Places, Things And Theories
F 512.2 Inst 1 Improper Presumption That Killing Was Criminal
*Modify CC 512 as follows:
[DELETE CALCRIM 512]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiencies—CC 512 is problematic for two reasons.
First, in situations where the person died beyond the 3 years and a day statutory limit (PC 194), the instruction adds nothing, and could be misleading, because the presumption of innocence requires the jurors to presume that all killings are not criminal.
Second, in situations where the person died within the statutory limit CC 512 unconstitutionally implies a presumption of criminality. (See e.g., People v. Salas (1976) 58 CA3d 460, 474; People v. Dewberry (1959) 51 C2d 548, 557; see also Carella v. California (1989) 491 US 263 [105 LEd2d 218; 109 SCt 2419].)
See also PG X(D)(5) [Applying Instructional Principle To One Aspect Of The Charge And Not To Another].
WARNING! Federalconstitutional 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.
