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PG III(G) The FORECITE System For Drafting Pinpoint Instructions.
a. Identify and articulate the theory upon which you want a special instruction (e.g., the defendant did not brandish a firearm (i.e., exhibit in a rude, angry or threatening manner) because he drew the weapon in jest.)
b. Identify an approved CALJIC format or combination of formats for pinpoint instruction (e.g., CJ 2.40, CJ 2.91, CJ 4.21, CJ 4.30, CJ 4.50) which best suits your situation.
c. Adapt the CALJIC format to your theory by inserting the element to be negated and the theory upon which you are relying.
Pinpoint Instructions: Themes And Variations
(Draft Pinpoint)
The following sample instructions are provided to illustrate some possible formats for pinpoint instructions. They are not intended to suggest the best or all possible forms:
Defense Theory: Heat of Passion Negates Lying in Wait
CJ 4.21 Adaption. In the crime of murder by lying in wait of which the defendant is accused a necessary element is the existence in the mind of the defendant a concealed purpose or plan to surprise the victim.
If the evidence shows that the defendant acted in hot anger without reflection, you should consider that fact in determining whether defendant had a plan or concealed purpose to surprise.
If from all the evidence you have a reasonable doubt whether the defendant had such a concealed purpose or plan you must find that [he] [she] did not have such purpose or plan and find him or her not guilty of murder by lying in wait.
CJ 4.30 / CJ 4.50 Adaption. The defendant in this case has introduced evidence for the purpose of showing [Evidence has been received which may tend to show (CJ 4.30] that the defendant had no concealed purpose or plan to surprise because he acted in hot anger without reflection. If, after consideration of all the evidence, you have a reasonable doubt that the defendant killed with a concealed purpose or plan to surprise, you must find him not guilty of first degree murder.
CJ 2.91 Adaption. The burden is on the people to prove beyond a reasonable doubt that the defendant killed with a concealed purpose or plan to surprise rather than in hot anger without reflection.
If after considering the circumstances of the killing you have a reasonable doubt whether the defendant killed with a concealed purpose or plan to surprise you must give the defendant the benefit of the doubt and find him not guilty of first degree murder.
CJ 2.40 Variation — [Additional Burden Language]. Evidence that the defendant acted in hot anger without reflection may be sufficient by itself to raise a reasonable doubt as to the defendant’s guilt of first degree murder.
Points and Authorities
The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also, People v. Wharton (91) 53 C3d 522, 570 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [pinpoint instruction proper if it is predicated upon defendant’s theory].)
Examples of such instructions are CJ 2.91 (eyewitness testimony), CJ 4.50 (alibi) and CJ 4.21 (intoxication). (CJ 2.91 and CJ 4.50 approved in Wright; CJ 4.21 approved in Saille.) The instruction proposed in the present case relates defendant’s evidentiary theory — that he acted in hot anger without reflection — to an element of the lying in wait charge — a plan or concealed purpose to surprise. (See People v. Ceja (93) 4 C3d 1134, 1142 [17 CR2d 375] [impliedly recognizing that “hot anger” may negate lying in wait].)
Because the proposed instruction is the proper subject of a pinpoint instruction, and because it follows the judicially approved form for such instructions (i.e., CJ 2.91, CJ 4.21 and/or CJ 4.50, it should be given as requested.
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves the jury with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)
CJ 2.03 / CJ 4.50 Variation. If you find that the defendant killed in hot anger without reflection you may consider this fact as a circumstance tending to negate the existence of a concealed purpose or plan to surprise. If, after consideration of all the evidence, you have a reasonable doubt that the defendant killed with a concealed purpose or plan to surprise, you must find defendant not guilt of first degree murder.
Points and Authorities
It has been held that CJ 2.03 is not an improper pinpoint instruction. (People v. Kelly (92) 1 C4th 495, 531-32 [3 CR2d 677].) Similarly, the instruction proposed above, which utilizes the format of CJ 2.03 and which seeks to relate the defendant’s evidentiary theory to an element of the charge, should be given when appropriate. (Cite Saille and Wright.)
Defense Theory: Factors For Jury to Consider — e.g. Weapon Drawn in Jest
(People v. Sica (26) 76 CA 648)
Misdemeanor Brandishing a Deadly Weapon
CJ 4.21 Adaption. In the crime of brandishing a deadly weapon of which the defendant is accused a necessary element is that the deadly weapon exhibited be drawn or exhibited in a rude, angry or threatening manner.
If the evidence shows that the defendant drew the gun in jest, you should consider that fact in determining whether defendant drew or exhibited the weapon in a rude, angry or threatening manner.
If from all the evidence you have a reasonable doubt whether the defendant drew or exhibited the weapon in a rude, angry or threatening manner, you must find that [he] [she] did not draw or exhibit the weapon in a rude, angry or threatening manner and find him or her not guilty of brandishing a deadly weapon.
CJ 4.30 / CJ 4.50 Adaption. The defendant in this case has introduced evidence for the purpose of showing [Evidence has been received which may tend to show (CJ 4.30)] that the defendant did not draw or exhibit the weapon in a rude, angry or threatening manner because he drew the weapon in jest. If, after consideration of all the evidence, you have a reasonable doubt that the defendant drew or exhibited the weapon in a rude, angry of threatening manner, you must find him not guilty of brandishing a deadly weapon.
CJ 2.40 Variation. Evidence that the defendant drew the gun in jest may be sufficient by itself to leave you with a reasonable doubt as to the guilt of the defendant.
Points and Authorities
[See above.]
CJ 2.03 / CJ 4.50 Variation. If you find that the defendant drew the weapon in jest you may consider this fact as a circumstance which negates the requirement that the gun be “drawn, or exhibited in a rude, angry or threatening manner.” If, after consideration of all the evidence, you have a reasonable doubt that the defendant drew or exhibited the weapon in a rude, angry or threatening manner, you must find defendant not guilt of brandishing a deadly weapon.
Points and Authorities
It has been held that CJ 2.03 is not an improper pinpoint instruction. (People v. Kelly (92) 1 C4th 495, 531-32 [3 CR2d 677].) Similarly, the instruction proposed above, which utilizes the format of CJ 2.03 and which seeks to relate the defendant’s evidentiary theory to an element of the charge, should be given upon request. (Cite Saille and Wright.)
Defense Theory: Claim of Right — Complete Defense
(e.g. People v. Romo (90) 220 CA3d 514, 519 [269 CR 440].)
CJ 2.91 Adaption. The burden is on the people to prove beyond a reasonable doubt that the defendant did not have a good faith belief that he had permission to take the property and intended to permanently deprive [the victim] of the property taken.
If after considering the circumstances you have a reasonable doubt whether the defendant intended to permanently deprive [the victim] of the property, you must give the defendant the benefit of the doubt and find him not guilty of theft.
Williams Instruction: “If one takes personal property of another with the good faith belief that he has permission to take the property, he is not guilty of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict the defendant of theft.” (People v. Williams DEPUBLISHED (92) 9 CA4th 209 [11 CR2d 772].)
Points and Authorities
[See above.]
False Report of Crime: Pinpoint Instruction
As To Negation of Knowledge
(PC 148.5)
The burden is on the prosecution to prove beyond a reasonable doubt that, at the time defendant made the report to the police, [he] [she] had actual knowledge that no felony or misdemeanor was committed. [¶] The defendant has introduced evidence that [he] [she] actually believed a felony or misdemeanor was committed and, therefore, did not have actual knowledge that the report was false. [¶] If after considering all the evidence you have a reasonable doubt whether the defendant knew the report [he] [she] made was false, you must give the defendant the benefit of the doubt and find [him] [her] not guilty.
Points and Authorities
[See above.]
