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FORECITE May 2007 Newsletter 

New and Updated Practice Notes And Instructions 

Please note that this page only contains the table of contents of the May 2007 newsletter. 
Please select the link below to download the latest FORECITE newsletter in its entirety.
 

MAY 2007 FORECITE NEWSLETTER 


 May 2007 FORECITE Newsletter
Table of Contents
 

PRACTICE GUIDE 

PG I(B)(1) Duty of Court To Go Beyond CALJIC
PG I(H) Precedential Hierarchy: Stare Decisis, Etc. ["What Trumps What?"]
PG VI(A)(2) Invited Error: General Principles
PG VI(A)(3) Invited Error: Joining D.A.’s Request For Instruction
PG VI(A)(7) Invited Error As To Lesser Included Offenses
PG VI(E) Issue Preservation: Practice Tips
PG VI(E)(1) Using A Mantra Motion To Preserve Without The Need Of Restating The Federal Constitutional Grounds Over And Over
PG VI(E)(2) Practice Tips For "Making A Winning Record"
PG VII(C)(32)(7) Applicability Of Constitutional Rights To Sentencing Decisions: Whether Apprendi Forecloses Use Of A Juvenile Prior As A Strike Or Five Year Enhancement
PG VII(C)(43) Right To Confrontation: Hearsay Testimony—Crawford Update
PG VII (D) Jury Must Consider Mitigating Evidence
PG IX(J)(15) CRC Rule 2.1036 And Available Options In Response To Deadlock
PG IX(J)(16) Juror Deadlock: Virga Firecracker Instruction
PG X(A)(3) "Reasonable Likelihood" Standard Applies To Ambiguous Instructions
PG X(C)(1)(c) Reduction Of Charge To Lesser Offense For Failure To Instruct On Elements Of The Greater Offense
PG X(C)(3.2) Failure To Instruct On Defense Theory: Standard Of Prejudice
PG X(E)(19)(2) Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter
PG X(E)(19)(4) Whether Cautionary Instruction Can Preclude Improper Juror Consideration of Hearsay Upon Which Expert Relied?
PG X(K)(3) Ineffective Assistance of Counsel On Appeal: "No Merit" Briefs: Anders/Wende
CHK I California Statutes and Rules of Court Relevant to Jury Instructions
CHK V PC 1122(a) Checklist re: Preinstruction (See also, CJ 0.50, CC 101)
LIO II(E)(1) Time-Barred Lesser Offenses
LIO V(D) Conviction Of Lesser Offense – Impact On Greater Offense 
LIO V(E) Granting Of New Trial On Lesser Precludes Retrial of Greater
LIO V(F) Impact Of A New Trial Order On Double Jeopardy
LIO VI(B) LESSER INCLUDED CHECKLIST (LIO CHK)
    PC 118 – Perjury
    PC 209.5 – Kidnapping During The Commission Of A Carjacking
    PC 261(a)(2)/PC 664 – Attempted Forcible Rape
    PC 288(c)(1) – Lewd Or Lascivious Acts Involving Children
    PC 288.2(a), (b) – Harmful Matter Sent With Intent To Seduce Minor
    PC 496(a) – Receiving Stolen Property
    PC 518-523 – Extortion
    PC 594(a), (b)(1) – Felony Vandalism
    PC 653f, PC 653j – Solicitation To Commit Felony

 


CALJIC 

F 0.25 n13 Opening Argument Before Voir Dire
F 1.00 n5 Pretrial Instruction Re Jury’s Duty (PC 1122(a)); CRC Rule 2.1035
F 1.00 n7 Questions By Jurors: Whether Judge Or Attorney Should State The Question
F 1.00 n12 Questions By Jurors: Additional Safeguards Not Referred To In Rule 2.1033
F 1.00a Respective Duties Of Judge And Jury: Questions By Jurors
F 1.00c Pretrial Introduction And Definitions (PC 1122(a); CRC Rule 2.1035; CJ 1.00)
F 1.00d Pretrial Instruction Re: Charges And Burden Of Proof
F 1.05 n2 Juror Note Taking: Required Upon Request
F 1.05 n5 Court Must Inform Jury It May Request Readback Of Testimony
F 1.05 n6 Note-Taking: Whether A Judge "Must Inform" Jurors "At Beginning Of Trial"
F 2.20.1a

Testimony Of A Child: Cautionary Instruction

F 2.60b Jurors To Disregard Non-Testifying Defendant’s Courtroom Appearance, Conduct And Demeanor
F 2.60d Jury May Only Consider Testifying Defendant’s Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue
F 2.71.5a Adoptive Admission: Circumstances Must Have Warranted A Response
F 2.80 n8(G) Expert Witnesses: DNA Issues And Instructions: DNA Genetic Profiles Based On Race Data
F 2.92b Factors Not Specified in CALJIC 2.92
F 2.92f Eyewitness Factors: Prior Failure To Identify Defendant
F 2.008a Cautionary Instruction: Courtroom Security
F 4.10 n10 Competency: Impeachment Of Defendant With Statements Made During Competency Examination
F 4.40d Duress As Defense To Underlying Felony In Felony Murder Case
F 5.12a Antecedent Threats To The Defendant Justify Quicker And Harsher Measures In Self-Defense
F 6.40 n2 Whether Perpetrator May Be Convicted As Accessory
F 6.40a Convicted Perpetrator Cannot Also Be Convicted As Accessory Based On Post-Felony Attempts To Escape Apprehension, Prosecution Or Conviction
F 6.40b Failure Or Refusal To Give Information Not Alone Sufficient For Accessory Liability
F 7.66b Willful Failure To File Tax Return: Prosecution Must Prove Defendant Tax Deficiency
F 8.21j Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
F 8.66.1b Attempted Murder: Specification Of Prosecution’s Burden Of Proof As To "Kill Zone" Doctrine
F 9.35.1 n3 Battered Woman/Child Syndrome: Jury Must Consider Objective Standard In Light Of Defendant’s Past Experience (EC 1107)
F 9.52b Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 9.71.5a Defense Theory: Good Faith Reasonable Belief Of Harm To Child Negates Malice
F 10.00c Proof Necessary To Establish Element Of Fear (PC 26)
F 10.00f Definition Of Rape Constitutionally Deficient By Failing To Define "Sexual Intercourse"
F 12.24.1d Medical Marijuana Defense: Jurors Must Not Second Guess Physician’s Determination That Medical Use Of Marijuana Is Appropriate
F 14.23 n2 Grand Theft From The Person (PC 487(2)): Taking Property After Victim Flees
F 14.23a Grand Theft From The Person: Taking Of Property After Victim Flees
F 17.02 n1 Multiple Counts: Multiple Victims
F 17.02 n26 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
F 17.20 n10 Group Attack: Constitutional Claim — Failure To Require Finding Of Personal Infliction
F 17.24.1 n22 HIV Enhancement (PC 12022.85)
F 17.43c Juror Inquiry: Any Juror May Communicate With The Court At Any Time
F 17.55 n5 Juror Deadlock: Virga Firecracker Instruction

 


CALCRIM 

F 100.3 Note 13 Self-Representation On Appeal
F 100.3 Note 14 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Motion For New Trial
F 100.6 Note 1 Opening Argument Before Voir Dire
F 101.1 Note 1 Pretrial Admonition
F 102 Inst 3 (a & b) Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
F 102 Note 3 Juror Note Taking: Required Upon Request
F 102 Note 4 Note Taking: Whether A Judge "Must Inform" Jurors "At Beginning Of Trial"
F 103.1 Inst 6 Arrest, Charges And Trial Are Not Evidence
F 104.1 Inst 7 Jurors To Disregard Non-Testifying Defendant’s Courtroom Appearance, Conduct And Demeanor
F 104 Note 3   Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
F 106 Note 2 Questions By Jurors: Additional Safeguards Not Referred To In Rule 2.1033
F 106 Inst 2 Right To Submit Questions At Any Time
F 220.2 Inst 2 California Case Law Requires The Prosecution To Prove Every Element
F 220.2 Inst 3 The Jury Should Be Instructed Using The "Each Element" Formulation Of The January 2006 Version Of CALCRIM 220
F 222 Note 1 Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
F 253 UNION OF ACT AND INTENT: CRIMINAL NEGLIGENCE
F 253 Inst 1 Union of Act and Intent: Criminal Negligence – Applicability To Multiple Acts Or Course Of Conduct
F 253 Inst 2 Union of Act and Intent: Criminal Negligence – Act Must Be "Committed"
F 253 Inst 3 Instruction Should Be Tailored To Facts
F 253 Note 1  Union of Act and Intent: Criminal Negligence – CALCRIM Cross-References And Research Notes
F 303 Note 7 Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses
F 315.1.1 Inst 6 Eyewitness Identification: Instruction As Sanction For Loss Of Original Photographs
F 317 Inst 1 Prior Statement Of Deceased Declarant In Gang Case
F 330 Inst 3 Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
F 330 Note 1 Testimony of Child 10 Years of Age or Younger: CALCRIM Cross References And Research Notes
F 330 Note 2 Child Witness Instruction: Due Process And Equal Protection Challenges
F 331 TESTIMONY OF PERSON WITH DEVELOPMENTAL, COGNITIVE, OR MENTAL DISABILITY
F 331 Inst 1 Witness Evaluation Should Focus On Truth And Accuracy
F 331 Inst 2 Witness With Mental Disability: Cautionary Instruction
F 331 Inst 3 Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
F 331 Note 1 Testimony of Person With Developmental, Cognitive, or Mental Disability: CALCRIM Cross References And Research Notes
F 331 Note 2 Witness With Developmental, Cognitive, or Mental Disability: Due Process And Equal Protection Challenges
F 332 Inst 16 Limiting Instruction When Expert Relies On Hearsay
F 371(A-4) Inst 5 Instruction As Sanction For Prosecution’s Loss Or Destruction Of Evidence Generally
F 371(A-4) Inst 6 Instruction As Sanction For Prosecution’s Loss Of Original Line Up Photos
F 371(A-4) Inst 7 Instruction As Sanction For Loss Of Alibi Witness Due To Prosecution’s Unjustified Delay
F 402.5 Inst 6 Separation Of Compound Elements; Enumeration Of Non-Target Offense Elements
F 440 ACCESSORIES
F 440 Inst 1 Failure Or Refusal To Give Information Not Alone Sufficient For Accessory Liability
F 440 Note 1 Accessories: CALCRIM Cross References And Research Notes
F 440 Note 2   Whether Perpetrator May Be Convicted As Accessory
F 505.4 Inst 1 Assaultive Character To Show Victim Acted In Conformity With Character
F 505.4 Inst 2 Evidence Of Assaultive Acts To Show (1) Victim Acted In Accordance With Character And (2) That Defendant Had An Honest And Reasonable Belief In The Need To Defend
F 521.5 MURDER: DEGREES – ELEMENTS AND DEFINITIONS
F 521.5 Inst 1 Lying In Wait: Express Instruction On "Substantial Period Of Waiting"
F 540A.6 Inst 5 (a-d) Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
F 763.12 (Factor k) Inst 6 Mercy Can Itself Be A Mitigating Factor
F 820 Note 1 Assault Causing Death Of Child: CALCRIM Cross-References And Research Notes
F 820 Note 2 PC 273ab Not Unconstitutional: Malice Not Required
F 821.5 Inst 7 Concurrence Of Act And Criminal Negligence
F 851 Note 10 Battered Person Expert To Negate Malice Or Support Self-Defense Theory
F 853 Note 16 Definition Of "Care Custodian"
F 860.6 Inst 2 Effect Of Intent To Frighten
F 860.6 Inst 3 Pinpoint Instruction: Intent To Frighten As Defense Theory
F 860.6 Inst 4 Pinpoint Instruction: Intent To Frighten
F 860 Note 11 Aggravated Assault: Unprotected Consensual Sexual Intercourse By HIV Positive Individual
F 1000 Note 11 Assault With Intent To Rape Not LIO Of Attempted Rape
F 1200.4 Inst 2 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1200.5 Inst 2 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1201.4 Inst 2 (a-b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1201.5 Inst 3 (a-b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1202.4 Inst 4 (a – b)   Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1202.5 Inst 4 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1203.4 Inst 4 (a-b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1203.5 Inst 7 (a-b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1204 Note 10 Attempted Kidnapping For Carjacking (PC 209.5): Completed Carjacking Is A Required Element
F 1700.4 Inst 2 (a-c) Burglary: Required Intent May Not Be Inferred From Entry Itself
F 1801.2 Inst 4 Grand Theft From The Person: Taking Of Property After Victim Flees
F 1801 Note 3 Grand Theft From The Person (PC 487(2)): Taking Property After Victim Flees
F 1863 Note 8 Claim Of Right: Overlap With Mistake Of Fact
F 2140 Note 6 Hit And Run: Applicability To Person Who Did Not Commit The Underlying Offense
F 2302.9 Possession For Sale Of Controlled Substance—Lesser Offense Issues
F 2302.9 Inst 1 Pinpoint Instruction: Simple Possession As Lesser Offense
F 2360.6 Inst 3 Medical Marijuana: Prosecution Must Prove That The Transportation Was Not Reasonably Related To The Patient’s Medical Needs
F 2360.6 Inst 4 Medical Marijuana Defense: Jurors Must Not Second Guess Physician’s Determination That Medical Use Of Marijuana Is Appropriate
F 2360.6 Inst 5 Medical Marijuana Defense: Defendant Need Not Be "Seriously Ill"
F 2360 Note 14 Compassionate Marijuana Use: Charge Of Possession For Sale Does Not Preclude Defense Where Defendant Is Charged With Lesser Included Offense Of Simple Possession
SERIES 2800 TAX CRIMES
F 2800 Failure to File Tax Return [Reserved]
F 2801 Willful Failure to File Tax Return
F 2801 Inst 1 Existence Of Tax Deficiency Should Be Included As Enumerated Element
F 2801 Note 1 Willful Failure to File Tax Return: CALCRIM Cross References And Research Notes
F 2801 Note 2 Whether Tax Deficiency Must Be Substantial
SERIES 2600-2700 CRIMES AGAINST GOVERNMENT
F 2640 Perjury
F 2640 Inst 1 Perjury: Stating that Something Is True With Inadequate Knowledge (PC125) — Requirement Of Total Ignorance
F 3146.5 Inst 2 Personal Use of Firearm: Requirement Of Threat To Use Firearm (PC 12022.5)
F 3406 Note 1 Mistake of Fact: CALCRIM Cross References And Research Notes
F 3406 Note 2 Right To Instruction On Mistake Of Fact
F 3406 Note 3 Claim Of Right: Overlap With Mistake Of Fact
F 3160 Note 9 Group Attack: Constitutional Claim—Failure To Require Finding Of Personal Infliction
F 3500.2 Inst 1 Unanimity: Enumeration Of Acts
F 3515.2 Note 3 Multiple Counts: Multiple Victims
F 3515.2 Note 20 Conviction Of Both Carjacking And Robbery
F 3550 Note 1 Procedures And Instructions Re: Juror Deadlock
F 3550 Note 2 Propriety Of Giving The "Virga Firecracker" Instruction To A Deadlocked Jury
Article Bank CCA-004 The Jury Should Be Instructed That It Must Find "Each Element" Or “Every Element” Of The Charge

 


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