SERIES 500 HOMICIDE
F 548 Murder: Alternative Theories
TABLE OF CONTENTS
F 548.1 Titles And Identification Of Parties
F 548.1 Inst 1 Murder: Alternative Theories—Title
F 548.1 Inst 2 Identification Of Prosecution And Defendant
F 548.2 Instructions
F 548.2 Inst 1 Murder: Alternative Theories— Jurors Must All “Find” That The Prosecution Has Proved All Elements Of At Least One Theory Beyond A Reasonable Doubt
F 548.2 Inst 2 Murder: Alternative Theories— Clarification Of Each Jurors Process For Finding Every Element Of At Least One Prosecution Theory
F 548.2 Inst 3 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished
F 548.9 Murder: Alternative Theories— Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 548.1 Titles And Identification Of Parties
F 548.1 Inst 1 Murder: Alternative Theories— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 548.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # SERIES 500 HOMICIDE
F 549 Felony Murder: One Continuous Transaction—Defined
TABLE OF CONTENTS
F 549.1 Titles And Identification Of Parties
F 549.1 Inst 1 Felony Murder: One Continuous Transaction—Defined—Title
F 549.1 Inst 2 Identification Of Prosecution And Defendant
F 549.2 Instructions
F 549.2 Inst 1 Jurors Not Required To Decide
F 549.2 Inst 2 Felony Murder: One Continuous Transaction—Defined: Clarification Of Factors
F 549.2 Inst 3 Add To Factors: Whether The Felon Reached A Place Of Temporary Safety
F 549.2 Inst 4 Burden Of Proof As To Factors
Return to Series 500 Table of Contents.
F 549.1 Titles And Identification Of Parties
F 549.1 Inst 1 Felony Murder: One Continuous Transaction—Defined—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 549.1 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 549.2 Felony Murder: One Continuous Transaction—Defined—Tailoring To Facts: Persons, Places, Things And Theories
F 549.2 Inst 1 Jurors Not Required To Decide
*Modify CC 549, paragraph2, sentence 1, as follows [added language is underlined; deleted language is stricken]:
[Change “In deciding . . .” to “In attempting to decide …” ]
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 549.2 Inst 2 Felony Murder: One Continuous Transaction—Defined: Clarification Of Factors
*Replace CC 549, paragraph 2 and modify factors, with the following [added language is underlined; deleted language is stricken]:
In attempting to decide whether the prosecution has [met this burden] [proven beyond a reasonable doubt] that the alleged act causing death and the alleged __________ <insert PC 189 felony> were part of one continuous transaction, factors for you to consider include, but are not limited to the ones listed below.
The factors which are present typically should weigh in favor of finding that one continuous transaction has been proven.
The factors which are not present typically should weigh against finding that one continuous transaction has been proven.
[The prosecution must prove that a factor more likely than not exists. Otherwise you must [consider] [find] the factor to be absent.]
However, if the factor is an essential fact, the prosecution must prove it beyond a reasonable doubt.
1. Whether or not the felony started, and the fatal act occurred, at the same place;
2. Whether or not the time period, if any, between the felony and the fact act was short;
3. Whether or not the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony;
4. Whether or not the fatal act occurred after the felony but while [one or more of] the perpetrator[s] continued to exercise control over the person who was the target of the felony;
AND
5. Whether or not the fatal act occurred while the perpetrator[s] (was/were) fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime;
6. Whether the felony was the direct cause of the death;
AND
7. Whether the death was a natural and probable consequence of the felony.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Juror Understanding—Without the above modifications, the jurors are given no guidance as to the use of the factors. As lay persons, the jurors cannot be expected to understand how the factors relate to the continuous transaction question without further guidance. (See Cal. Rules of Court, Rule 855(e) [instructions must be understandable].)
Balance—The CALCRIM 549 factors are all stated in terms that, if found, they would support a continuous transaction finding. To provide balance, the jurors should also be given the option of “not” finding the factor and weighing that non-finding against finding one continuous transaction. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
Deletion Of Factors 6 & 7—Factors 6 & 7 relate to causation which is a discrete element of felony murder apart from the one continuous transaction element. Hence, to allow causation as a factor for finding on continuous transaction would be improper bootstrapping. The fact that the causation element was proven should not be the basis for finding whether there was one continuous transaction in addition to causation. (See FORECITE F 540A.5 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.]
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 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
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 549.2 Inst 3 Add To Factors: Whether The Felon Reached A Place Of Temporary Safety
*Add to factors:
Whether the felon had reached a place of temporary safety.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Relevance Of Whether Place Of Temporary Safety Had Been Reached—It is true that People v. Cavitt (2004) 33 C4th 187, 206-209 eliminated the “escape” rule as a basis for finding that a felony is complete. However, whether a place of temporary safety has been reached should still be a relevant factor for the jury to consider. (See generally FORECITE F 105.2 Inst 2.)
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 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
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 549.2 Inst 4 Burden Of Proof As To Factors
*Replace CC 549, paragraph 3 with the following:
However, if the factor is an essential fact, the prosecution must prove it beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
CALCRIM 549, paragraph 3, sets up the somewhat problematic process where the jury is encouraged to make factual findings without applying any standard of proof. (See EC 502 [burden must be specified].) Unless governed by an objective standard of proof, the verdict may be unreliable, arbitrary, and constitutionally infirm.
Unless the existence of a fact is proven by an objective standard such as a preponderance of the evidence, the fact is neither relevant nor reliable and should not be considered by the jurors. (See EC 403.) Thus, at a minimum, the prosecution should be required to prove any factor by a preponderance of the evidence before allowing the jurors to consider it. (Ibid.)
Moreover, if the factor is an essential fact, it should be proven beyond a reasonable doubt. (See In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also e.g., CALCRIM 376, paragraph 4.)
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.]
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 5.7 [Preliminary Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
alcrim-motion-bank-ccm-006″> CCM-006.
F 548.2 Murder: Alternative Theories— Tailoring To Facts: Persons, Places, Things And Theories
F 548.2 Inst 1 Murder: Alternative Theories— Jurors Must All “Find” That The Prosecution Has Proved All Elements Of At Least One Theory Beyond A Reasonable Doubt
*Modify CC 548, paragraph 3, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You may not find the defendant guilty of murder unless all of you agree find that the People have proved that the defendant committed murder under by proving every element of at least one of these theories beyond a reasonable doubt.
Points and Authorities
CALCRIM 548 fails to expressly require the jurors to “find” “every element” of a prosecution theory before relying on it to convict. (See FORECITE F 415.8 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.
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 548.2 Inst 2 Murder: Alternative Theories—Clarification Of Each Juror’s Process For Finding Every Element Of At Least One Prosecution Theory
*Add to CC 548:
No juror may convict the defendant of murder unless that juror finds that the prosecution has proven one or both of the following beyond a reasonable doubt:
1. Every element of malice aforethought murder as required by Instruction(s) _____.
AND/OR
2. Every element of felony murder as required by Instruction(s) ________.
The jury may not return a verdict of guilty as to Count _____, ____________ <e.g., first degree murder> unless all twelve jurors have voted for guilt on that [count] [charge].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 548 fails to provide a process or mechanism to assure that each juror finds all required elements to be proven beyond a reasonable doubt. (Compare CC 3517 and CC 3518 [express, detailed deliberation process for greater and lesser offenses or of degrees of guilt].) For example, the deficiencies of CC 548 include the failure to: (1) refer the jurors to the specific instructions defining each alternative theory, (2) state the rule in terms of each juror’s voting decision, and (3) expressly relate the elements of the alternative to the prosecutions burden of proof.
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 548.2 Inst 3 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished
*Add to CC 548 when appropriate:
However, you need to all agree as to which of the following acts, if any, the prosecution has proven beyond a reasonable doubt:
[Insert facts requiring unanimity.]
Therefore, you should take a separate vote for each of the above acts with each juror (e.g., has the prosecution proven the defendant guilty of murder based on Act 1; has the prosecution proven the defendant guilty of murder based on Act 2, etc.).
Unless all twelve jurors vote for guilt based on the same act or acts, you must return a verdict of not guilty. If one or more jurors cannot decide which way to vote, then you may not return a verdict of guilty or not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 548 fails to expressly inform the jurors as to the distinction between theories which do not require unanimity and discrete facts which do. Although CC 3500 is to be used for the latter, reference to the distinction should be included in CC 548 to assure juror understanding of this complex and non-intuitive legal principle.
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.]
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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 548.9 Murder: Alternative Theories—Lesser Offense Issues [Reserved]
