SERIES 500 HOMICIDE
F 524 Second Degree Murder: Peace Officer
TABLE OF CONTENTS
F 524.1 Titles And Identification Of Parties
F 524.1 Inst 1 Second Degree Murder: Peace Officer—Title
F 524.1 Inst 2 Identification Of Prosecution And Defendant
F 524.2 Second Degree Murder: Peace Officer—Tailoring To Facts: Persons, Places, Things And Theories
F 524.2 Inst 1 Tailoring To Facts: Specification Of Basis For Personal Use Allegation
F 524.3 Second Degree Murder: Peace Officer—Language That Is Argumentative, Confusing, Etc.
F 524.3 Inst 1 Jury Not Required To “Decide”
F 524.3 Inst 2 (a & b) Modification Of Language Cross-Referencing Other Instructions
F 524.4 Second Degree Murder: Peace Officer—Burden Of Proof Issues
F 524.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 524.4 Inst 2 Officer’s Performance Of Duty: Modification Of Burden Shifting Language
F 524.5 Second Degree Murder: Peace Officer—Elements And Definitions
F 524.5 Inst 1 Separate Enumeration Of Elements Combined In Element 1
F 524.5 Inst 2 Knowledge Of Defendant: Lawful Performance Of Duties
F 524.5 Inst 3 Reasonably Should Have Known: Objective Standard [CC 505 Format]
F 524.5 Inst 4 Concurrence Of Act And Intent
F 524.5 Inst 5 Great Bodily Injury: Requires Injury In Addition To That Present In The Offense
F 524.6 Second Degree Murder: Peace Officer—Defense Theories [Reserved]
F 524.7 Second Degree Murder: Peace Officer—Preliminary Fact Issues [Reserved]
F 524.8 Second Degree Murder: Peace Officer—Unanimity/Duplicity/Multiplicity
F 524.8 Inst 1 Unanimity: Clarification
F 524.9 Second Degree Murder: Peace Officer—Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 524.1 Titles And Identification Of Parties
F 524.1 Inst 1 Second Degree Murder: Peace Officer—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 524.1 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 524.2 Second Degree Murder: Peace Officer—Tailoring To Facts: Persons, Places, Things And Theories
F 524.2 Inst 1 Tailoring To Facts: Specification Of Basis For Personal Use Allegation
*Modify CC 524, Element 3 with the following and delete paragraph 7 when the prosecution’s theory is personal use of a deadly weapon or firearm:
3. The defendant personally used a (deadly weapon [or] firearm) to kill __________ <insert decedent’s name> by _____________ <insert manner of use, i.e., displaying the [weapon [or] firearm] in a menacing manner, hitting ___________ <insert decedent’s name> with the [weapon] [or] [firearm]; shooting the firearm>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Tailor To Facts—The specific manner of personal use should be alleged in the elements. (See FORECITE F 400.2 Inst 1.)
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 524.3 Second Degree Murder: Peace Officer—Language That Is Argumentative, Confusing, Etc.
F 524.3 Inst 1 Jury Not Required To “Decide“
*Modify CC 524, paragraph 1 as follows [added language is underlined]:
If you find the defendant guilty of second degree murder [as charged in Count ], you must then decide, if you can, whether the People have proved the additional allegation that (he/she) murdered a peace officer.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 524.3 Inst 2 (a & b) Modification Of Language Cross-Referencing Other Instructions
*Modify CC 524, paragraph 6, as follows [added language is underlined; deleted language is stricken]:
Alternative a:
[Repeat the relevant instructions in CC 524]
Alternative b:
[The term[s] (great bodily injury[,]/ deadly weapon[,]/ [and] firearm) (is/are) defined in another Instruction[s] ______ to which you should refer must [apply] [follow] as if it was fully set forth here.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Cross-Referencing Other Instructions—To assure that the jurors follow all relevant instructions it is the better practice to repeat instructions where applicable rather then to refer the jurors to other instructions. (See e.g., Guide for Using CALCRIM [definitions should be incorporated].) However, if the length or quantity of repeated instructions makes repetition unwieldy, then the cross-reference should:
1. Specify the relevant instruction.
2. Require the jurors to follow such cross-referenced instructions (see e.g., CALCRIM 5640A, & 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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 524.4 Second Degree Murder: Peace Officer—Burden Of Proof Issues
F 524.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 524.4 Inst 2 Officer’s Performance Of Duty: Modification Of Burden Shifting Language
*Modify CC 524, paragraph 12, as follows [added language is underlined; deleted language is stricken]:
To prove that [A peace officer is not ___________ <insert decedent’s name> was lawfully performing (his/or her) duties if he or she is the prosecution must prove beyond a reasonable doubt that (he/she) (unlawfully arrestinged or detaininged someone/ _____________ <insert name of person arrested or detained> [or] and (he/she) usinged unreasonable or excessive force in (his/ or her duties)). Instruction 2670 <FORECITE modification> explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Prosecution Must Prove Lawfulness Of Officer’s Conduct— The prosecution has the burden of proving the lawfulness of the officer’s conduct beyond a reasonable doubt. (People v. Castain (1981) 122 CA3d 138, 145.) However, CC 524 unconstitutionally shifts the burden of proof to the defendant as to the lawfulness of the officer’s conduct by phrasing the instruction in terms of “if“ the officer was acting “unlawfully“ or “unreasonably.“ (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Carella v. California (89) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].)
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.]
See also FORECITE F 404.2 Inst 1.
F 524.5 Second Degree Murder: Peace Officer—Elements And Definitions
F 524.5 Inst 1 Separate Enumeration Of Elements Combined In Element 1
*Modify CC 524, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. __________ <insert officer’s name, excluding title> was a peace officer lawfully performing (his/her) duties as a peace officer;
2, ____________ <insert officer’s name, excluding title> was lawfully performing (his/her) duties as a peace officer;
[Renumber remaining elements].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Discrete Elements Should Be Separately Enumerated—The issues of whether the decedent was a peace officer and whether he or she was lawfully performing his or her duty are discrete elements. (See e.g., People v. Brown (1988) 46 C3d 432, 444-45 [jury must determine whether the alleged victim was a peace officer; People v. Gonzalez (1990) 51 C3d 1179, 1217 [peace officer must be acting lawfully]; see also CALCRIM 2670, Lawful Performance: Peace Officer].)
Accordingly, these elements should be separately enumerated. (See FORECITE F 3500.2 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 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 524.5 Inst 2 Knowledge Of Defendant: Lawful Performance Of Duties
*Modify CC 524, Element 2, as follows [added language is underlined]:
2. When …was a peace officer who was lawfully performing (his/her) duties(;/.)
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requirement Of Lawful Performance—Lawful performance is required. (See People v. Gonzalez (1990) 51 C3d 1179, 1217; compare CALCRIM 524, Element 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 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 524.5 Inst 3 Reasonably Should Have Known: Objective Standard [CC 505 Format]
*Add to CC 524 as follows re: Element 2:
In determining whether the defendant reasonably should have known that _______________ <name of alleged victim> was a peace officer consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have known.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Objective Standard [CC 505] Format—Because the “should have known“ element is objective, it should be measured by the above standard. (See People v. Humphrey (1996) 13 C4th 1073; see also CC 505, paragraph 3, sentence 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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 524.5 Inst 4 Concurrence Of Act And Intent
*Modify CC 524, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. When the defendant killed __________ <insert officer’s name>, the defendant (intended to kill the peace officer/ [or] intended to inflict great bodily injury on the peace officer/ [or] personally used a (deadly weapon/ [or] firearm) to kill the peace officer).]
Points and Authorities
See FORECITE F 251 Inst 3.
F 524.5 Inst 5 Great Bodily Injury: Requires Injury In Addition To That Present In The Offense
*Modify CC 524, paragraph 3, sentence 1 as follows
[Great bodily injury means significant or substantial physical injury in addition to that which must necessarily be present in every case of ____________ <insert charged offense>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requirement Of Additional Injury—In People v. Escobar (1992) 3 C4th 740, 752, the court overruled People v. Caudillo (1978) 21 C3d 562, 580-83 by holding that “transitory and short-lived“ injuries are sufficient to support a GBI enhancement under PC 12022.7. However, the court agreed with Caudillo’s conclusion that the legislative history of PC 12022.7 does require “substantial or significant injury in addition to that which must be present in every case of rape.“ [Internal quote marks and citations omitted.] (Escobar 3 C4th at 746-47; see also People v. Beltran (2000) 82 CA4th 693 [court erred in imposing GBI enhancement under PC 12022.7 since GBI is an element of felony evasion of peace officer (VC 2800.3)].) Accordingly, the CALCRIM definition of GBI should be modified to assure the jury understands that the injury must be in addition to or beyond that which is present in every violation of the statute.
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (1999) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)
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 524.6 Second Degree Murder: Peace Officer—Defense Theories [Reserved]
F 524.7 Second Degree Murder: Peace Officer—Preliminary Fact Issues [Reserved]
F 524.8 Second Degree Murder: Peace Officer—Unanimity/Duplicity/Multiplicity
F 524.8 Inst 1 Unanimity: Clarification
*Modify CC 524, paragraph 8 as follows [added language is underlined; deleted language is stricken]:
[Make part of Element 3, to which it refers]
*Modify sentence 2 as follows:
You may not find the defendant guilty unless you all agree find beyond a reasonable doubt that the People have proved at least one of these alleged facts and you all agree on which fact or facts were proved.
Points and Authorities
See FORECITE F 415.8 Inst 1.
F 524.9 Second Degree Murder: Peace Officer—Lesser Offense Issues [Reserved]
