SERIES 500 HOMICIDE
F 520 MURDER WITH MALICE AFORETHOUGHT
TABLE OF CONTENTS
F 520.1 TITLES AND IDENTIFICATION OF PARTIES
F 520.1 Inst 1 Murder With Malice Aforethought—Title
F 520.1 Inst 2 Identification Of Prosecution And Defendant
F 520.2 MURDER WITH MALICE AFORETHOUGHT—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES [RESERVED]
F 520.3 MURDER WITH MALICE AFORETHOUGHT—LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 520.3 Inst 1 Replacement Of Term “State Of Mind” With “Mental State”
F 520.3 Inst 2 Deletion Of Duplicative And Argumentative Language
F 520.3 Inst 3 Jurors Not Obligated To Decide Degree Of Murder
F 520.4 MURDER WITH MALICE AFORETHOUGHT—BURDEN OF PROOF ISSUES
F 520.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 520.4 Inst 2 Causation: Jury Not Limited To Circumstances “Established By The Evidence”
F 520.5 MURDER WITH MALICE AFORETHOUGHT—ELEMENTS AND DEFINITIONS
F 520.5 Inst 1 Causation Should Be Separately Enumerated Element
F 520.5 Inst 2 Concurrence Of Act And Intent And/Or Mental State; Modification To Make Language Plainer
F 520.5 Inst 3 Implied Malice: Concurrence Of Act And Mental State
F 520.5 Inst 4 Malice Must Be Formed Before The Act Is Committed
F 520.6 MURDER WITH MALICE AFORETHOUGHT— DEFENSE THEORIES
F 520.6 Inst 1 The CALCRIM Instructions Fail To Make It Clear That Absence Of Passion/Quarrel And Absence Of Imperfect Defense Are Prerequisites Which The Jurors Must Find Before Convicting The Defendant Of Murder Or Attempted Murder
F 520.7 MURDER WITH MALICE AFORETHOUGHT— PRELIMINARY FACT ISSUES [RESERVED]
F 520.8 MURDER WITH MALICE AFORETHOUGHT— UNANIMITY/DUPLICITY/MULTIPLICITY [RESERVED]
F 520.9 MURDER WITH MALICE AFORETHOUGHT—LESSER OFFENSE ISSUES [RESERVED]
Return to Series 500 Table of Contents.
F 520.1 Titles And Identification Of Parties
F 520.1 Inst 1 Murder With Malice Aforethought—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 520.1 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 520.2 Murder With Malice Aforethought—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 520.3 Murder With Malice Aforethought—Language That Is Argumentative, Confusing, Etc.
F 520.3 Inst 1 Replacement Of Term “State Of Mind” With “Mental State”
*Modify CC 520, paragraph 2, Element 2 and paragraph 3, sentence 2, as follows [added language is underlined; deleted language is stricken]:
2. When the defendant acted, (he/she) had a state of mind mental state called malice aforethought(;/.)
…
Proof of either is sufficient to establish the state of mind mental state required for murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Because other CC instructions refer to “mental state” rather than “state of mind” (see e.g., CC 3426, 3427 and 3428), and because the jurors are presumed to have followed the instructions as a whole, the use of inconsistent terms may mislead the jurors.
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 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 520.3 Inst 2 Deletion Of Duplicative And Argumentative Language
*Modify CC 520, paragraph 6, sentence 1 & 3, as follows [deleted language is stricken]:
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 520.3 Inst 3 Jurors Not Obligated To Decide Degree Of Murder
*Modify CC 520, last bracketed sentence as follows [added language is underlined; deleted language is stricken]:
[If you decide
find beyond a reasonable doubt that the defendant committed murder, you must then attempt to decide, if you can, whether it is murder of the first or second degree].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001]
The CALCRIM Deficiency: “Must Decide” Language Is Coercive – It is erroneously and unduly coercive to tell the jurors that they “must decide” whether the murder is first- or second-degree. [See FORECITE F 100.7 Inst 1.] Instead, the jurors should be told to “try to” decide “if you can.” (See CALCRIM 3550, paragraph 2.) [Cf. FORECITE F 3517 Inst 2 [Doubt Whether Greater Or Lesser Offense [Dewberry]].]
Unless CC 520 is modified as set forth above, the jurors may be misled into believing that they “must decide” the degree of murder in question. It is true that CC 3550, paragraph 2, states: “You should try to agree on a verdict if you can.” However, there is no assurance that the jurors will follow these instructions as opposed to the conflicting “must decide” language in CC 520. Conflicting or contradictory language is inadequate to assure the jurors will follow the correct language. (See Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965].) [See also FORECITE F 100.1 Inst 1.] Moreover, as recognized by the CALCRIM Committee, juror understanding of the instructions is best accomplished by including the relevant language in the instruction to which it applies. (See, e.g., CALCRIM User’s Guide [definitions should be included in enumerated elements].) Hence, to assure juror understanding, the “try to decide … if you can” language should be incorporated into the specific enhancement instruction.
[See also FORECITE F 100.7 Inst 1.]
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 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
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 520.4 Murder With Malice Aforethought—Burden Of Proof Issues
F 520.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 520.4 Inst 2 Causation: Jury Not Limited To Circumstances “Established By The Evidence”
*Modify CC 520 paragraph 8, sentence 3, as follows [added language is underlined; deleted language is stricken]:
In deciding, if you can, whether a consequence is natural and probable, consider all of the circumstances established by the evidence.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The terminology “established by the evidence” erroneously implies that the defendant has a burden to produce evidence on this issue.
“Established By The Evidence”—See FORECITE F 404.4 Inst 1 [Deletion Of Burden Shifting Language].
“If You Can” B See FORECITE F 100.7 Inst 1.
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 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 520.5 Murder With Malice Aforethought—Elements And Definitions
F 520.5 Inst 1 Causation Should Be Separately Enumerated Element
*Modify CC 520, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant intentionally committed an act; that caused the death of (another person/ [or] a fetus);
2. That act caused the death of _______________ <insert name of decedent or person carrying the alleged fetus victim>;
[Renumber remaining elements]
Points and Authorities
Separate Enumeration Of Elements— See FORECITE F 3500.2 Inst 1.
Causation As An Element—See FORECITE F 1000.5 Inst 6.
Tailoring To Specify Alleged Victim—See FORECITE F 820.2 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.
F 520.5 Inst 2 Concurrence Of Act And Intent And/Or Mental State; Modification To Make Language Plainer
*Modify CC 520, Element 2 as follows [added language is underlined; deleted language is stricken]:
[Alternative # 1:]
2. When The defendant acted, (he/she) had a state of mind called did so with malice aforethought(;/.)
[Alternative # 2:]
2. When The defendant acted, (he/she) had a state of mind called committed the act specified in Element 1 with malice aforethought(;/.)
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Concurrence Requirement—Use of the phrase “when the defendant acted …” in Element 2 fails to assure that the jurors will relate the mental state required in Element 2 (mens rea) with the precise act required in Element 1 (actus reus). Concurrence of act and intent/mental state is an essential element of every crime. (See FORECITE F 251.1 Inst 3.)
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 3.8 [Concurrence Of Act And Intent Or Mental State]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 520.5 Inst 3 Implied Malice: Concurrence Of Act And Mental State
*Modify CC 520, paragraph 5, Elements 3 & 4 as follows [added language is underlined; deleted language is stricken]:
3. Prior to and at the time (he/she) acted, committed the act (he/she) knew (his/her) the act was dangerous to human life;
AND
4. (He/She) deliberately acted committed the act with conscious disregard for (human/[or] fetal) life.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Deletion Of “Acted“—See FORECITE F 520.3 Inst 1.
“Prior To”—See CC 520, paragraph 6.
F 520.5 Inst 4 Malice Must Be Formed Before The Act Is Committed
*Modify CC 520, paragraph 2, Element 2, as follows [added language is underlined; deleted language is stricken]:
2. Prior to and when the defendant committed the acted, (he/she) had a state of mind called malice aforethought(;/.)
Points and Authorities
“Prior To”—See FORECITE F 251 Inst 3.
“Committed The Act”—See FORECITE F 520.3 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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 520.6 Murder With Malice Aforethought—Defense Theories
F 520.6 Inst 1 The CALCRIM Instructions Fail To Make It Clear That Absence Of Passion/Quarrel And Absence Of Imperfect Defense Are Prerequisites Which The Jurors Must Find Before Convicting The Defendant Of Murder Or Attempted Murder
[ACKNOWLEDGMENT: This entry was adapted from briefing provided by Stephen Greenberg.]
*Add the following as enumerated Element 3 or 4 [depending on whether CC Alternate Element 3 is given]:
[AND
3./4. [He/She] was not acting as a result of either:
A. A sudden quarrel or heat of passion, upon sufficient provocation; or
B. An actual, but unreasonable, belief in the need to defend [himself/herself/another person].]
The prosecutor has the burden of proving beyond a reasonable doubt that the defendant acted with express or implied malice and that the killing was not in the [heat of passion or sudden quarrel] [unreasonable belief in need to defend oneself (or another person)].
(The detailed explanations of passion/quarrel and imperfect defense should appear later in the instruction, or in a supplemental murder instruction — but not, as occurs now, within the definition of voluntary manslaughter. (People v. Rios, supra, 23 Cal.4th 450, 462-463.))
Alternate b:
*Add the following as an enumerated Element of CC 520 when appropriate:
[He/She] did not kill in [the heat of passion] [or] [imperfect self-defense] as [that] [those] term[s] [is] [are] defined in instruction[s] number[s] [____] [and] [____].
Alternate c [modify CC definition of express and implied malice (CC 520, ¶ 3) by adding the following as an enumerated element:
[He/She] did not kill in [the heat of passion] [or] [imperfect self-defense] as [that] [those] term[s] [is] [are] defined in instruction[s] number[s] [____] [and] [____].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Instructions On Murder and Attempted Murder Fail To Address Provocation and Imperfect Self Defense – “In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. [Citation.]” (Middleton v. McNeil (2004) 541 US 433, 437.) Following common law, California defines murder as an unlawful killing committed “with malice aforethought.” (PC 187(a); People v. Brown (1995) 35 CA4th 778, 714.) “[P]rovocation and imperfect self-defense . . . mitigate the offense by negating the murder element of malice, and thus limit the crime to manslaughter.” (People v. Rios (2000) 23 C4th 450, 454, 461, original italics.) “If the issue of provocation or imperfect self-defense is thus ‘properly presented’ in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. [Citations.]” (Id. at 462, original italics, citing Mullaney v. Wilbur (1975) 421 US 684, 704.) In other words, “the People must establish malice, including, in appropriate cases, the absence of provocation [and imperfect self-defense], as an essential element of murder.” (People v. Rios, supra, 23 C4th 450, 469, original italics.)
The same principles apply to the relationship between attempted murder and its lesser offense of attempted voluntary manslaughter. (People v Carpenter (1997) 15 C4th 312, 391 [attempted murder requires express malice]; People v. McCoy (2001) 25 Cal.4th 1111, 1116 [unreasonable self-defense]; People v. Heffington (1973) 32 CA3d 1, 11-12 [passion/quarrel].)
Addressing a non-instructional issue in People v. Martinez (2003) 31 C4th 673, 685, the majority held that “the absence of imperfect self-defense or voluntary intoxication is not an element of the offense of murder which must be proved by the People. Instead, these doctrines are ‘mitigating circumstances,’ which may reduce murder to manslaughter by negating malice. [Citation.]” (Original italics.) Inexplicably, the opinion cited People v. Rios, supra, 23 C4th 450, 461. While Rios described imperfect defense and passion/quarrel as malice-negating circumstances, that did not preclude treating their absences as murder elements or sub-elements. On the contrary, Rios declared the opposite: “malice” is an essential element of murder[,] and it “includ[es], in appropriate cases, the absence of provocation [and imperfect self-defense.]” (Id. at 469, original italics.)
Concurring and dissenting, Justice Kennard noted this anomaly: together, the statutory scheme and case law effectively provide that “[m]alice as an element of the crime of murder … includes as an essential component the absence of imperfect self-defense.” (Id. at 705-707, conc. & dis. opn. of Kennard, J., citing Rios and Mullaney v. Wilbur, supra, 421 US 684, 704.) In reconciling “the apparently conflicting statements in opinions of our Supreme Court” (Grant v. Grant (1942) 52 CA2d 359, 361), this court should note that even if absence of mitigating factors are not “element[s] of … murder” (Martinez), they are “includ[ed]” within the murder element of malice (Rios). That is, “the absence of imperfect self-defense is an element, or an essential component of an element, of the offense of murder.” (People v. Martinez, supra, 31 C4th 673, 707, conc. & dis. opn. of Kennard, J., italics added.)
In sum, the jury instructions — viewed as a whole — must reasonably convey the necessity to find absence of provocation and absence of imperfect defense as prerequisites to murder and attempted murder verdicts.
However, the standard instructions on murder and attempted murder identify their mental elements — which the prosecution must “prove” in order “[t]o prove that the defendant is guilty” — as “malice aforethought” (murder) and “inten[t] to kill” (attempted murder). (CALCRIM 520, 600.) More specifically, “[p]roof of either” express or implied malice “is sufficient to establish the state of mind required for murder.” (CALCRIM 520.) These instructions ignore absence of provocation and absence of imperfect defense — despite their “inclu[sion]” within “an essential element” of both crimes. (People v. Rios, supra, 23 C4th 450, 469.)
“An instruction omitting an element of the charged offense violates a defendant’s rights under the federal and state Constitutions. [Citations.]” (People v. Tillotson (2007) 157 CA4th 517, 538-539.) An inaccurate or incomplete description of a required element is equally erroneous. (People v. Mayfield (1997) 14 C4th 668, 773-774.)
Absence of passion/quarrel and absence of imperfect defense are prerequisites the jury must find in order to convict a defendant of murder or attempted murder. (People v. Rios, supra, 23 C4th 450, 462, 469.) But the charged crime instructions are not phrased accordingly. Instead, the jury subsequently learns provocation “may reduce a murder from first-degree to second-degree, and may reduce a murder to manslaughter.” (CALCRIM 522, italics added.) Similarly, “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone [1] because of a sudden quarrel or in the heat of passion[;]” or [2] “because he acted in imperfect self-defense or imperfect defense of another.” (CALCRIM 570, 571, italics added; re attempt, see CALCRIM 603, 604.)
As a matter of legal theory, courts often describe provocation and imperfect defense as circumstances that “reduce” murder to manslaughter. (See, e.g., People v. Rios, supra, 23 C4th 450, 461, 467-468.) But even where a phrase has been used “with some frequency in our opinions,” it may have “the potential to sow confusion if used in the instructions to the jury. [Citations.]” (People v. Cavitt (2004) 33 C4th 187, 202-203.)
The jury must decide whether the defendant committed the charged crimes; between those crimes and lesser ones, “the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Citations.]” (People v. Dewberry (1959) 51 C2d 548, 555; People v. Musselwhite (1998) 17 C4th 1216, 1262.) As a legal concept, the “reduc[tion]” of homicide from murder to manslaughter “may be interesting to lawyers and judges and law professors, but it does not aid the task of lay jurors to inform them that” such a reduction may occur. (People v. Genovese (2008) 168 CA4th 817, 831.) Absent a finding of murder, there is nothing to “reduce.” The CALCRIM formulation suggests jurors must first determine whether the defendant committed murder, based on an incomplete explanation of malice; only then might they lower the crime to manslaughter, based on additional findings. This approach is affirmatively misleading.
Alternative judicial phrasings better describe both the legal relationship between murder and manslaughter and the jury’s task. For example, “[h]eat of passion and unreasonable self-defense … establish the ‘lack[] [of] malice’ that distinguishes [manslaughter] from [murder].” (People v. Breverman (1998) 19 C4th 142, 159, italics added.) “[P]rovocation and imperfect self-defense … limit the crime to manslaughter.” (People v. Rios, supra, 23 C4th 450, 454, 461, original italics.) While the court must instruct on all lesser included offenses with evidentiary support (People v. Breverman, supra, 19 C4th 142, 162), the manslaughter and attempted manslaughter instructions are unique in offering the jury an option to “reduce” a greater-offense finding already made.
The final paragraphs of the manslaughter and attempted manslaughter instructions finally identify the prosecution’s burden to prove absence of passion/quarrel and absence of imperfect defense: “The People have the burden of proving beyond a reasonable doubt that the defendant did not [attempt to] kill as the result of a sudden quarrel or in the heat of passion [or acting in imperfect self-defense or imperfect defense of another]. If the People have not met this burden, you must find the defendant not guilty of [attempted] murder.” (CALCRIM 570, 571, 603, 604.) But to the extent the jury does not also learn it must consider the apparent manslaughter elements before returning murder or attempted murder verdicts, the instructions are deficient.
The CALCRIM Instructions On Deliberation Procedure Fail To Require Consideration Of Omitted Elements Or Sub-Elements – CALCRIM 640 and 641 list the charged and lesser offenses and then tell the jury, “You may consider these different [crimes] in whatever order you wish.” (Italics added.) The instructions do not say jurors must consider voluntary manslaughter and attempted voluntary manslaughter — even though their definitions actually included elements or sub-elements of murder and attempted murder. Furthermore, CALCRIM’s hypothetical illustrations reinforce the idea that the jury need not consider the lesser crimes: “If you all agree that the People have proved that the unlawful killing was first-degree [or attempted] murder, complete the verdict form stating that the defendant is guilty of first-degree [or attempted] murder.” (CALCRIM 640, 641.)
Only after this point, the “procedure” instructions hint at the true nature of the murder-manslaughter relationship: “If the People have not met this burden, you must find the defendant not guilty of [attempted] murder.” (CALCRIM 640, 641 [including additional, similar distinctions].) But these hints are insufficient: “The People have the burden of proving that the defendant committed [attempted] murder rather than a lesser offense. By the time the jurors have heard about this greater vs. lesser “burden,” it has effectively learned that (1) consideration of lesser offenses was not required; and (2) if jurors agreed on guilt of the charged crime, no further deliberation was necessary. Thus, the jurors will likely understand that they can properly find defendant guilty of murder or attempted murder based on their listed elements and exercise their option not to consider elements of lesser offenses. Thus the jurors could properly conclude the prosecution had already met its “burden of proving that the defendant committed murder [or attempted murder] rather than a lesser offense.” “[T]he murder instruction stands at the top of the jury instruction check-list. Jurors are therefore encouraged by the structure of the instructions to answer its requirements first and then move on only if those requirements cannot be met.” (Falconer v. Lane (7th Cir. 1990) 905 F2d 1121, 1136.)
In general, “[j]urors are presumed able to understand and correlate instructions …. [Citations.]” (People v. Scott (1988) 200 CA3d 1090, 1095.) But that presumption should not save the instructions here, given their substantial defects.
If read to a jury composed of lawyers, this set of instructions probably could not produce the faulty hypothetical murder verdict complained of since the elements of voluntary manslaughter were stated. But the reasoning that could produce such a faulty verdict by a lay jury was unmistakably left open in instructions given by the presiding judge at trial. We must presume that the jury was not already schooled in distinctions between murder, voluntary manslaughter, and justifiable self-defense — or even the general concept of lesser-included offenses.
(Falconer v. Lane, supra, 905 F2d 1121, 1136-1137.)
Although the instructional sequence was only part of the problem, defendant acknowledges that “[t]he order in which instructions are given is generally immaterial [citation] ….” (People v. Cummings (1993) 4 C4th 1233, 1338.) Nevertheless, “the sequence of instructions can, in some instances, result in confusion.” (People v. Carrasco (1981) 118 CA3d 936, 943.) A court reviewing such an issue must seriously evaluate the individual instructions and their overall structure. (Id. at 941-944; People v. Visciotti (1992) 2 C4th 1, 61; People v. Sanders (1990) 51 C3d 471, 517-519.)
In sum, the instructions should be modified as requested to avoid the risk that the jurors will conclude that they have discretion to reach verdicts on the charged crimes without considering the law or evidence relating to voluntary manslaughter — that is, without weighing evidence of passion/quarrel and imperfect defense. (Cf., People v. Najera (2006) 138 CA4th 212, 228 [recognizing potential merit of the argument as to CALJIC 17.10 “in the abstract” but concluding that, in light of the jurors’ questions during deliberations, “in reality, the order of jury instructions did not lead to an improper conviction in this case.”].)
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]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 8.1 [Lesser Included Offense: Requested As Defense Theory]
FORECITE CG 8.2 [Lesser Included: Failure To Instruct Sua Sponte]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
