SERIES 500 HOMICIDE
F 521 Murder: Degrees
TABLE OF CONTENTS
F 521.1 TITLES AND IDENTIFICATION OF PARTIES
F 521.1 Inst 1 Murder: Degrees—Title
F 521.1 Inst 2 Identification Of Prosecution And Defendant
F 521.2 MURDER: DEGREES—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 521.2 Inst 1 Heat Of Passion To Negate Mental State Required For Torture
F 521.2 Inst 2 Provocation May Negate Lying In Wait (PC 187)
F 521.3 MURDER: DEGREES—LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC. [RESERVED]
F 521.3 Inst 1 Deletion Of Duplicative And Argumentative Language
F 521.4 MURDER: DEGREES— BURDEN OF PROOF ISSUES
F 521.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 521.4 Inst 2 Murder: Degrees—Jury Not Required To Decide; Finding Beyond A Reasonable Doubt
F 521.5 MURDER: DEGREES—ELEMENTS AND DEFINITIONS [RESERVED]
F 521.6 MURDER: DEGREES—DEFENSE THEORIES [RESERVED]
F 521.7 MURDER: DEGREES—PRELIMINARY FACT ISSUES [RESERVED]
F 521.8 MURDER: DEGREES—UNANIMITY/DUPLICITY/MULTIPLICITY
F 521.8 Inst 1 Unanimity Required As To Degree Of Murder
F 521.9 Note 1 Second Degree Felony Murder Is Lesser Included (LIO) Of First Degree Malice Murder
Return to Series 500 Table of Contents.
F 521.1 Titles And Identification Of Parties
F 521.1 Inst 1 Murder: Degrees—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 521.1 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 521.2 Murder: DegreesC Tailoring To Facts: Persons, Places, Things And Theories
F 521.2 Inst 1 Heat Of Passion To Negate Mental State Required For Torture
*Replace CC 521 with the following:
If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with a willful, deliberated, and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Applicability Of Provocation To Torture—Torture requires a “cold-blooded, calculated intent to inflict … pain for personal gain or satisfaction.” (People v. Raley (1992) 2 C4th 870, 899; see also People v. Cole (2004) 33 C4th 1158, 1194; People v. Wiley (1976)18 C3d 162, 168-69.) Hence, provocation and/or heat of passion—even if insufficient to negate malice—may negate the mental state required for torture. (See Cole, 33 C4th at 1211-12 [recognizing that jury may properly consider provocation “in connection with murder by torture” ]; see also CJ 8.73 and CC 522.)
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.
CALJIC NOTE: See FORECITE F 8.73e.
F 521.2 Inst 2 Provocation May Negate Lying In Wait (PC 187)
*Replace CC 521 with the following:
If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed while lying in wait.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Relating Provocation To Lying In Wait—In People v. Ceja (1993) 4 C4th 1134, 1142, the Court of Appeal had held that the evidence of lying in wait was insufficient because it was “more suggestive that the killing was a product of appellant’s ‘hot anger of the moment and was executed without reflection’ rather than the result of any plan, secrecy or concealment.” (Id. at 1142.) The California Supreme Court, while disagreeing with the Court of Appeal’s conclusion that the evidence was insufficient, did not dispute the Court of Appeal’s suggestion that “hot anger of the moment” may negate the mens rea for lying in wait. Rather, the Supreme Court concluded that the Court of Appeal stated only one possible interpretation of the evidence. (Ibid.) Hence, the common sense notion that heat of passion or “hot anger” may negate the mens rea of lying in wait—which must be “equivalent to premeditation or deliberation” (CJ 8.25)—may provide a basis for a pinpoint instruction upon such a theory. (See CC 522 and CJ 8.73; FORECITE PG III(A).)
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.
CALJIC NOTE: See FORECITE F 8.73 n1.
F 521.3 Murder: Degrees—Language That Is Argumentative, Confusing, Etc.
F 521.3 Inst 1 Deletion Of Duplicative And Argumentative Language
*Modify CC 521, paragraph 9, as follows [deleted language is stricken]:
[There is no requirement that the person killed be aware of the pain.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 521.4 Murder: Degrees—Burden Of Proof Issues
F 521.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 521.4 Inst 2 Murder: Degrees— Jury Not Required To Decide; Finding Beyond A Reasonable Doubt
*Modify CC 521, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
If you decide find beyond a reasonable doubt that the defendant has committed murder, you must 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.]
“Find Beyond A Reasonable Doubt”—See CALCRIM 521, paragraph 4; see also FORECITE F 400.4 Inst 1.
“If You Can”– See FORECITE F 100.7 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 A 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 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 521.5 Murder: Degrees—Elements And Definitions[Reserved]
F 521.6 Murder: Degrees— Defense Theories [Reserved]
F 521.7 Murder: Degrees—Preliminary Fact Issues [Reserved]
F 521.8 Murder: Degrees—Unanimity/Duplicity/Multiplicity
F 521.8 Inst 1 Unanimity Required As To Degree Of Murder
*Modify CC 521, paragraph 4, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You may not find the defendant guilty of first degree murder unless all of you agree find that the People prosecution has proved that the defendant committed first degree murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Unanimity As To Degree—See FORECITE F 3517 Inst 2; F 415.8 Inst 1.
No Reference To “The People”—The defendant objects to use of the term “he 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 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 521.9
521.9 Note 1 Second Degree Felony Murder Is Lesser Included (LIO) Of First Degree Malice Murder
“If a jury is not satisfied that a defendant acted with either express or implied malice, it may find the defendant guilty of second degree murder on a felony murder theory.” (People v. Blair (2005) 36 C4th 686, 745 [addressing failure to instruct on second degree felony murder as a lesser included offense of first degree murder by poison, where jury found true a special circumstance allegation of murder by poison]; see also People v. Beames (2007) 40 C4th 907, 928-29.)
