SERIES 1600 ROBBERY AND CARJACKING
F 1600.5 Robbery—Elements And Definitions
TABLE OF CONTENTS
F 1600.5 Inst 1 Separate Enumeration Of Combined Elements; Include Definitions Under Enumerated Elements
F 1600.5 Inst 2 Robbery: When Still In Progress: Aider And Abettor Liability (PC 211)
F 1600.5 Inst 3 Robbery: Taking From Intoxicated Victim (PC 211)
F 1600.5 Inst 4 Robbery: When Two Or More Persons Are In Joint Possession Of A Single Item Of Property (PC 211)
F 1600.5 Inst 5 Robbery: Victim Must Actually Be Afraid
F 1600.5 Inst 6 Robbery: Force Requires Actual Physical Touching Beyond That Necessary For The Taking
F 1600.5 Inst 7 (a & b) Robbery: Asportation Requirement
F 1600.5 Inst 8 Robbery: Victim’s Fear Must Be Objectively Reasonable
F 1600.5 Inst 9 Robbery: Required Force—Purse Snatch
F 1600.5 Inst 10 Robbery— Act Must Be Motivated By Intent
F 1600.5 Inst 11 Possession Issues And Instructions
Return to Series 1600 Table of Contents.
F 1600.5 Inst 1 Separate Enumeration Of Combined Elements; Include Definitions Under Enumerated Elements
*Modify CC 1600 by replacing Elements as follows:
1. The defendant gained possession of [property] [_______________<description of alleged property>”];
AND
2. After gaining possession of the [property] [_______________<description of alleged property>”], the defendant moved it for some distance;
AND
3. The [property] [_______________<description of alleged property>”] had some value;
AND
4. The defendant did not [own] [have a right or authorization to possess] the [property] [_______________<description of alleged property>”]
AND
5. The defendant gained possession of the [property] [____________<description of alleged property>”] from _______________ <name of alleged victim> who:
A. Had it in (his/her) possession;
AND
B. Had if sufficiently in (his/her) physical control that (he/she) could keep possession of it if not prevented by force or fear;
AND
6. _______________ <name of alleged victim> did not consent to the defendant’s possession and movement of the property. This requires the prosecution to prove beyond a reasonable doubt that _______________ <name of alleged victim> either:
A. Did not know the nature of the defendant’s possession of movement of the [property] [_______________<description of alleged property>”];
OR
B. Did not freely and voluntarily consent to such possession and/or movement;
AND
7. The defendant gained possession and moved the [property] [_______________<description of alleged property>”] (and/or) prevented _______________ <name of alleged victim> from resisting by use either:
A. More force than necessary to take the [property] [_______________<description of alleged property>”] without resistance;
OR
B. Fear of (injury to the person himself or herself[,]/ [or] injury to the person’s family or property[,]/ [or] immediate injury to someone else present during the incident or to that person’s property);
AND
8. When the defendant used force or fear to take the property, (he/she) intended:
A. To deprive the owner of it permanently;
OR
B. To remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property).
Points and Authorities
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Incorporation Of Definition—See FORECITE F 417.5 Inst 2.
Tailor To Facts—See FORECITE F 1600.2 Inst 1.
“AND” After Each Element—See FORECITE F 400.4 Inst 2.
F 1600.5 Inst 2 Robbery: When Still In Progress: Aider And Abettor Liability (PC 211)
*Add at end of CC 1600:
To find the defendant guilty of robbery as an aider and abettor, [he] [she] must have formed the intent to encourage or facilitate the perpetrator prior to or during the commission of the robbery. The commission of the robbery continues so long as the “loot” is being carried away to a position of temporary safety.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Robbery Termination Depends On Whether The Robbers Were Carrying “The Loot”—In People v. Cooper (1991) 53 C3d 1158, 1159, the court, in a 4-3 decision, held that for purposes of aider and abettor liability “the commission of a robbery continues so long as the loot is being carried away to a position of temporary safety.” Hence, the commission of robbery is now defined by the asportation of the “loot.”
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.
NOTES
For ancillary purposes, such as GBI and felony murder, commission of the robbery is defined in terms of escape, not asportation. (Cooper, 53 C3d at 1158.) Hence, when both aiding and abetting and ancillary liability are at issue the jury should be clearly instructed as to the different definitions. (See FORECITE F 1603.2 Inst 2.)
In light of the absurd consequences which may flow from Cooper (see dissenting opinion of Kennard, J., 53 C3d at 1176-78), it may be subject to constitutional attack upon 14th Amendment substantive due process (see Gray v. Whitmore (1971) 17 CA3d 1, 21; People v. Beachem (1963) 223 CA2d 383, 387) and/or 8th Amendment (see In re Lynch (1972) 8 C3d 410) grounds.
CALJIC NOTE: See FORECITE F 9.40d.
F 1600.5 Inst 3 Robbery: Taking From Intoxicated Victim (PC 211)
*Add to CC 1600:
The terms force, violence, fear or intimidation as used in this instruction are not limited to external forces such as bludgeoning the victim or displaying a lethal weapon to overcome [his] [her] will and resistance. If the defendant administered a drug or alcohol to an unsuspecting victim and the victim was involuntarily intoxicated, the force or fear element may be established. However, the victim’s voluntary intoxication does not satisfy the force or fear element even if the defendant enticed the victim into becoming intoxicated for the purpose of taking [his] [her] property.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
When Victim Is Asleep Or Unconscious—In People v. Dreas (1984) 153 CA3d 623, 628-29, the court held that a showing of “force or fear” for purposes of establishing robbery under PC 211 is not limited to external forces such as bludgeoning the victim or displaying a lethal weapon to overcome his will and resistance. The court held that a poison or intoxicant may also be used as a means of imposing force or fear, thus justifying a conviction of robbery.
However, in People v. Kelley (1990) 220 CA3d 1358, 1371-72, the court distinguished Dreas—where the defendant administered a drug to an unsuspecting victim—from the situation where the victim voluntarily participates in a drinking game and thus knowingly “administered” the intoxicating liquor to himself. (Kelley, at 1368.)
Hence, the taking of property from a victim who is voluntarily asleep or unconscious from drinking does not constitute robbery. (Id. at 1359; see also People v. Russell (1953) 118 CA2d 136, 138-39; 4 Wharton’s Criminal Law (15th ed.) §464; 67 Am.Jur.2d Robbery, §§22, 29, 31-32; 77 C.J.S. Robbery, §22; see also out-of-state cases cited in Kelley at 1369; compare People v. Hill (2000) 23 C4th 853 [awareness of victim not an element of carjacking [PC 215].])
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.
[Additional briefing on this issue is available to FORECITE subscribers. Brief Bank # B-833.]
CALJIC NOTE: See FORECITE F 9.40g.
F 1600.5 Inst 4 Robbery: When Two Or More Persons Are In Joint Possession Of A Single Item Of Property (PC 211)
*Add to CC 1600, paragraph5, as follows:
To constitute robbery, the property must be removed from the possession and immediate presence of the victim against [his] [her] will, and such removal must be by force or fear. When two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals. All must be placed in fear or forced to unwillingly give up possession before a defendant may be convicted of robbery. If you have a reasonable doubt as to whether all persons in joint possession of the property were placed in fear or forced to unwillingly give up possession, you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Joint Possession—This principle was set forth by the California Supreme Court in People v. Ramos (1982) 30 C3d 553, 589; see also People v. Martinez (1984) 150 CA3d 579, 597.) (As to prosecution’s burden [last sentence], see FORECITE PG III(D) & PG III(E).)
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.
NOTES
If force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper. (Ramos, 30 C3d at 589; People v. Clay (1984) 153 CA3d 433, 459.)
CALJIC NOTE: See FORECITE F 9.40h.
F 1600.5 Inst 5 Robbery: Victim Must Actually Be Afraid
*Add the following to CC 1600, paragraph 8, regarding force or fear:
A taking is not accomplished “by fear” unless, as a result of the perpetrator’s actions, the victim was in fact afraid and such fear allowed the taking to be accomplished.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Victim’s Fear—PC 211 permits conviction of robbery based either upon “force” or “fear.” In the case of “fear,” it must be proven that “the victim was in fact afraid, and that such fear allowed the crime to be accomplished. [Citations].” (People v. Mungia (1991) 234 CA3d 1703, 1709; see also People v. Davison (1995) 32 CA4th 206, 213-15. Hence, even if the term “fear” is not a technical term requiring sua sponte definition (see Mungia, 234 CA3d at 1708 [CJ 9.40 does not make it clear that “by fear” requires that the victim was afraid and that such fear allowed the taking to be accomplished]), CJ 9.40 should be supplemented as set forth above. (See also People v. Cash (2002) 28 C4th 703 [prosecutor misstated the law in arguing that the use of force against the attempted murder victim satisfied the force or fear element for the robbery of the murder victim]; People v. Cuevas (2001) 89 CA4th 689, 698-700 [defendant’s argument that the passage from People v. Wright (1996) 52 CA4th 203 incorrectly instructed jury on fear element, making it an objective test, was correct. The fear element in robbery is subjective and the prosecution must present evidence “from which it can be inferred that the victim was in fact afraid”].)
Such instruction would be especially appropriate when requested to pinpoint a theory of the defense in light of a factual issue as to whether or not the victim actually was afraid. (See FORECITE F 315.1.2 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 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.
RESEARCH NOTES
[See Annotation, Purse Snatching As Robbery Or Theft, 42 ALR3d 1381 and Later Case Service.]
CALJIC NOTE: See FORECITE F 9.40j.
F 1600.5 Inst 5 Robbery: Victim Must Actually Be Afraid
*Add the following to CC 1600, paragraph 8, regarding force or fear:
A taking is not accomplished “by fear” unless, as a result of the perpetrator’s actions, the victim was in fact afraid and such fear allowed the taking to be accomplished.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Victim’s Fear—PC 211 permits conviction of robbery based either upon “force” or “fear.” In the case of “fear,” it must be proven that “the victim was in fact afraid, and that such fear allowed the crime to be accomplished. [Citations].” (People v. Mungia (1991) 234 CA3d 1703, 1709; see also People v. Davison (1995) 32 CA4th 206, 213-15. Hence, even if the term “fear” is not a technical term requiring sua sponte definition (see Mungia, 234 CA3d at 1708 [CJ 9.40 does not make it clear that “by fear” requires that the victim was afraid and that such fear allowed the taking to be accomplished]), CJ 9.40 should be supplemented as set forth above. (See also People v. Cash (2002) 28 C4th 703 [prosecutor misstated the law in arguing that the use of force against the attempted murder victim satisfied the force or fear element for the robbery of the murder victim]; People v. Cuevas (2001) 89 CA4th 689, 698-700 [defendant’s argument that the passage from People v. Wright (1996) 52 CA4th 203 incorrectly instructed jury on fear element, making it an objective test, was correct. The fear element in robbery is subjective and the prosecution must present evidence “from which it can be inferred that the victim was in fact afraid”].)
Such instruction would be especially appropriate when requested to pinpoint a theory of the defense in light of a factual issue as to whether or not the victim actually was afraid. (See FORECITE F 315.1.2 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 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.
RESEARCH NOTES
[See Annotation, Purse Snatching As Robbery Or Theft, 42 ALR3d 1381 and Later Case Service.]
CALJIC NOTE: See FORECITE F 9.40j.
F 1600.5 Inst 6 Robbery: Force Requires Actual Physical Touching Beyond That Necessary For The Taking
*Add the following to CC 1600 Element 4:
A taking is not committed “by force” unless the perpetrator actually applied physical force that was substantially different from or substantially greater than that necessary to accomplish the taking itself.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Required Force: Greater Then Necessary For Taking—PC 211 allows conviction for robbery based alternatively upon “force” or “fear.” Although the cases have suggested that the terms “force” and “fear” are presumed to be within the understanding of the jurors (see People v. Mungia (1991) 234 CA3d 1703, 1708), no case has expressly considered whether there is a duty to instruct upon the principle that robbery requires more force than that which is necessary to accomplish the mere seizing of the property and that the force be the means by which the taking was accomplished. Both of these principles are well settled. “[I]t is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales (1975) 49 CA3d 134, 139; see also People v. Turner (1990) 50 C3d 668, 725; People v. Jones (1992) 2 CA4th 867, 870-72; People v. Mungia (1991) 234 CA3d 1703, 1708; cf. People v. Pitman (1985) 170 CA3d 38, 52 [applying same principle to force as defined by PC 288(b)].) It is also well established that the “force” or “fear” must be the means by which the taking was accomplished. (See People v. Prieto (1993) 15 CA4th 210, 214; but see People v. Wright (1996) 52 CA4th 203, 210-11.)
Accordingly, when there is a factual issue as to either or both of the above elements, CJ 9.40 may not adequately instruct the jury on the meaning of force.
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.
NOTES:
Sua Sponte Requirement. The formulation of “force,” requiring something more than the force necessary to commit the underlying act, is a technical definition peculiar to the law and thus requires instruction sua sponte. (People v. Pitmon (1985) 170 CA3d 38, at 52.) The “something more” requirement is part and parcel of the essential element of force, at least when the evidence raises the issue, and as such, it is a general principle of law necessary to the jury’s understanding of the case which requires sua sponte instruction. (People v. Cummings (1993) 4 C4th 1233, 1311.)
Moreover, inasmuch as the “something more” requirement qualifies the meaning of the word “force,” it is an integral part of that essential element which must be heard by the jury, under both state law and the 14th Amendment. (People v. Enriquez (1996) 42 CA4th 661, 665; U.S. v. Gaudin (9th Cir. 1994) 28 F3d 943, 952 [cert. gtd. o.g. and aff’d (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310].
Thus, while in most contexts it has been held that the word “force” in the crime of robbery has no technical meaning (People v. Anderson (1966) 64 C2d 633, 639-40), that is not true when the evidence raises the issue of whether the force used was substantially more than that required to commit the underlying offense. Jurors cannot know the level of force required to commit an offense unless they are told. (See People v. Whitehurst (1992) 9 CA4th 1045, 1050 [instructions are given to jurors because it is assumed lay people do not know the law].)
In PC 288 cases, where this type of issue arises more often, the word “force” is considered to have a technical meaning, for precisely this reason. Force “substantially different from or substantially greater” than that necessary to accomplish the underlying offense is “a specialized meaning not readily known to the average lay juror.” (People v. Pitmon, supra, 170 CA3d at 52.) The CALJIC Committee recognized this, for after Pitmon, it built that technical definition into the standardized instruction for PC 288(b) cases. (CJ 10.42.) [Additional briefing regarding this issue in the related context of carjacking is available to FORECITE subscribers. See FORECITE F 9.46 n4.]
CALJIC NOTE: See FORECITE F 9.40k.
F 1600.5 Inst 7 (a & b) Robbery: Asportation Requirement
*Add at the end of CC 1600 Elements:
Alternative a:
6. Such property was carried away.
Alternative b:
2. The property was taken from another person’s possession and immediate presence and carried away for at least a slight distance.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Asportation As Element—An essential element of robbery is the “asporting or carrying away [of] the loot.” (People v. Cooper (1991) 53 C3d 1158, 1165; see also People v. Shannon (1998) 66 CA4th 649 element of asportation requires that the goods be severed from the possession or custody of the owner and moved slightly with the intent to permanently deprive the owner of it].) Thus, this element must be added to the standard instruction on the elements of robbery. (See also People v. Montero DEPUBLISHED (1996) 48 CA4th 1524, 1532-33.)
People v. Jones (1996) 42 CA4th 1047, 1055, held that absent request for an instruction on the element of “taking” or “asportation,” the court had no sua sponte duty to instruct on the term. The court noted that since CJ 9.40 stated all of the elements of robbery, it was incumbent on the defendant to request clarifying language regarding asportation if the defense deemed it to be an issue in the case.
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 9.40l.
F 1600.5 Inst 8 Robbery: Victim’s Fear Must Be Objectively Reasonable
*Add to CC 1600:
The fear or intimidation element of robbery requires proof of the following:
1. The victim parted with [his] [her] property, without [his] [her] consent, as a result of actual fear caused by the defendant’s conduct;
2. The victim’s fear was genuine and reasonable under the circumstances [, or if unreasonable, the perpetrator must have known of the victim’s subjective fear and taken advantage of it].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Objective Reasonableness Of Fear—PC 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” No California case has addressed the question of whether the fear specified in the statute refers to subjective fear of the victim or objectively reasonable fear. There are conflicting authorities on the issue from other jurisdictions. (See LaFave & Scott, Substantive Criminal Law (1986), §8.11, pp. 450-51 [discussing split in authority regarding whether fear must be objectively reasonable]; Note, 24 Minn.L.Rev. 708 (1940) [same].) However, if no element of objective reasonableness is included in the definition of robbery, “we would run the risk that the victim’s subjective reaction to benign conduct would unjustifiably escalate a theft to a robbery.” (Goodwine v. State (Wyo. 88) 764 P2d 680, 682-83.) On the other hand, if subjective fear is not required, robbery could occur without any force or actual fear. Hence, logic dictates that the fear element of robbery must be both subjective and objective.
This view is consistent with the California Supreme Court’s interpretation of similar language in the rape statute (PC 261) (People v. Iniguez (1994) 7 C4th 847, 852-53.) Iniguez held as follows: “Thus, the element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective. The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citations.] ¶ In addition, the prosecution must satisfy the objective component, which asks whether the victim’s fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it. [Citation.]”
Similarly, the fear required for kidnapping (PC 207) has been held to encompass both subjective and objectively reasonable components. (See People v. Reyes-Martinez (1993) 14 CA4th 1412, 1415 [approving CJ 9.50, which requires that the person be “unlawfully compelled … [to move] because of a reasonable apprehension of harm …”]; see also, People v. Pensinger (1991) 52 C3d 1210, 1260 [making determination of whether a crime involves violence based on whether it could have “put a reasonable person in fear …”]; see also, U.S. v. Marsh (9th Cir. 1994) 26 F3d 1496, 1500 [extortion under federal law (18 USC 1951) requires reasonable fear]; U.S. v. Tolub (2nd Cir. 1962) 309 F2d 286, 288 [victim’s fear under federal extortion statute (18 USC §1951) must be reasonable].) It is true that fear for purposes of robbery is specifically defined in PC 212, whereas the fear necessary for kidnapping and rape is not specifically defined. However, PC 212 does not purport to address the subjective/objective aspects of the fear requirement, but rather addresses the persons for whom the fear may be held. Accordingly, the definition of fear set forth in Iniguez for purposes of PC 261 should be dispositive of the fear required for robbery under PC 211.
Right To Requested Defense Theory Instruction—People v. Morehead (2011) 191 CA4th 765 concluded that there is no sua sponte duty to instruct that the victim’s fear must be reasonable. However, Morehead did not hold that such an instruction should be refused if requested by the defense. When supported by substantial evidence such a defense theory instruction should be given. (See FORECITE F 315.1.2 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 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.
NOTES
If the charge is attempted robbery, the reasonable fear requirement may not be necessary since there only need be an intent to cause fear rather than actual fear by the victim. (See U.S. v. Marsh, 26 F3d at 1501.)
CALJIC NOTE: See FORECITE F 9.40n.
F 1600.5 Inst 9 Robbery: Required Force—Purse Snatch
*Add to Cc 1600, Element 4, as follows:
The prosecution must prove that the defendant used more force than was needed merely to take the property from ____________ <name of victim>. [In deciding this issue consider all the circumstances including the physical characteristics of defendant and ___________ <name of victim>.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
More Force Than Necessary—”When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim, and is a question of fact to be resolved by the jury taking into account the physical characteristics of the robber and the victim.” (People v. Wright (1996) 52 CA4th 203, 210; see also People v. Morales (1975) 49 CA3d 134, 139 [“something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property”] .)
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 9.40q.
F 1600.5 Inst 10 Robbery— Act Must Be Motivated By Intent
* Add to CC 1600, Element 5, as follows:
The wrongful intent and the act of force or fear must concur in the sense that the act must be motivated by the intent.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Concurrence Of Act And Intent Is Act Motivated By Intent—People v. Green (1980) 27 C3d 1, 53; see also People v. Marshall (1997) 15 C4th 1, 34.
[See also FORECITE F 251 Inst 3.]
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 9.40.2c.
F 1600.5 Inst 11 Possession Issues And Instructions
Re: CC 1600, paragraph 6, see FORECITE F 3306; see also People v. DeFrance (2008) 167 CA4th 486, 501 [CC 1600 “could have provided more assistance to the jury . . . by specifying the factors the jury could consider” in deciding whether the victim had control over the property].
