SERIES 1600 ROBBERY AND CARJACKING
F 1602 Robbery: Degrees (PC 212.5)
TABLE OF CONTENTS
F 1602.1 Titles And Identification Of Parties
F 1602.1 Inst 1 Title
F 1602.1 Inst 2 Identification Of Prosecution And Defendant
F 1602.2 Tailoring To Facts: Persons, Places, Things And Theories
F 1602.2 Inst 1 Jurors Not Required To Decide
F 1602.2 Inst 2 Tailoring To Facts—Specific Prosecution Theory
F 1602.2 Inst 3 Reasonable Doubt As To Degree
F 1602.3 Language That Is Argumentative, Confusing, Etc.
F 1602.3 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 1602 NOTES
F 1602 Note 1 CALCRIM Cross-References And Research Notes
F 1602 Note 2 Camper Or Motor Home Is Not A “Trailer Coach”
F 1602 Note 3 First Degree Robbery: Inhabited Dwelling Includes Defendant’s Own Residence (PC 212.5)
F 1602 Note 4 First Degree Robbery Of ATM Customer: Knowledge Of Victim’s Status Not Required
Return to Series 1600 Table of Contents.
F 1602.1 Titles And Identification Of Parties
F 1602.1 Inst 1 Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1602.1 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 1602.2Tailoring To Facts: Persons, Places, Things And Theories
F 1602.2 Inst 1 Jurors Not Required To Decide
*Modify CC 1602, paragraph 1, sentence 2, as follows [added language is underlined]:
If you conclude that the defendant committed a robbery, you must then attempt to decide the degree.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1602.2 Inst 2 Tailoring To Facts—Specific Prosecution Theory
*Modify CC 1602, paragraphs 5, as follows:
[The robbery was committed while the person robbed _______________ <name of alleged victim> was performing (his/her) duties as [the driver of] [or] [was a passenger on] (a/an) (bus/taxi/cable car/streetcar/trackless trolley/ ____________ <other kind of vehicle used to transport people>.]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1602.2 Inst 3 Reasonable Doubt As To Degree
*Add to CC 1602, paragraph 7:
If you are satisfied that defendant was guilty of robbery, but you have a reasonable doubt as to whether it is in the first or second degree, you must find (him/her) guilty of robbery in the second degree.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction That Doubt As To Greater Or Lesser Offense Requires Verdict On Lesser—”It has been consistently held in this state since 1880 that when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser-included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Citations.]” (People v. Dewberry (1959) 51 C2d 548, 555; see also People v. Crone (1997) 54 CA4th 71,79 [failure to instruct on effect of reasonable doubt in choosing between greater and lesser offense was error].)
The same reasoning applies to offenses divided into degrees. The jury must be advised to convict only of the lesser degree if it has a reasonable doubt as to which degree applies. (People v. Dewberry 51 C2d at 554-558; People v. Aikin (1971) 19 CA3d 685, 699-703; compare People v. Musselwhite (1998) 17 C4th 1216, 1261-62 [Dewberry error cured by CJ 2.02]. .” . .[D]ecisional
law require[s] the giving of such an instruction.” (People v. Aikin, 19 CA3d at 703.)
Moreover, PC 1097 states as follows: “When it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.”) In People v. Dewberry, 51 C2d 548, 554-558, the Supreme Court (in holding that such an instruction should have been given) ruled that the reference to degrees of crime in PC 1097 referred to all degrees of criminality.
[See also FORECITE F 3517 Inst 2.]
RESEARCH NOTE—See Annotation, Duty to charge as to reasonable doubt as between degrees of crime or included offenses, 20 ALR 1258 and Later Case Service.
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]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser-Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE 1: “Are Satisfied” vs. “Find”—An instruction which requires that the jurors be convinced or satisfied that the defendant is guilty does not require the jury to find guilt beyond a reasonable doubt based on evidence presented by the prosecution. [See FORECITE F 224 Inst 5.] A fact finder can be “convinced” in his or her own mind that the defendant is guilty beyond a reasonable doubt even if the evidence has fallen short of so proving. Proof beyond a reasonable doubt is required as to every fact essential to the charged offense and every element of the offense. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)
On the other hand, when the defense strategy is focused on obtaining conviction of the lesser degree rather than acquittal, use of “satisfied” may be preferable.
STRATEGY NOTE 2: All or Nothing vs. Lesser Verdict Defense Theories—The above instruction would probably be most appropriate when the defense goal is to obtain a lesser verdict rather than outright acquittal. If the primary defense theory is one that calls for acquittal, the unmodified CALCRIM may be preferrable.
F 1602.3 Language That Is Argumentative, Confusing, Etc.
F 1602.3 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 1602, paragraphs 3 & 4, as follows [added language is underlined; deleted language is stricken]:
[The robbery was committed in an inhabited a:
1. (dwelling/vessel/floating home/trailer coach/part of a building);
AND
2. A Someone was currently living in the (dwelling/vessel/ floating home/trailer coach/part of a building) is inhabited if someone lives there and either is present or has left but intends and was present or had left but intended to return.]
[The robbery was committed while the person robbed _______________ <name of alleged victim> was:
1. Using or had just used an ATM machine and;
2. Was still near the machine.]
Points and Authorities
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Tailor To Facts—See FORECITE F 400.2 Inst 1.
F 1602 NOTES
F 1602 Note 1 CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1600 [Robbery]
CALCRIM 1601 [Robbery In Concert]
CALCRIM 1603 [Robbery: Intent Of Aider A nd Abettor]
Research Notes:
See CLARAWEB Forum, Robbery And Carjacking—Series 1600.
F 1602 Note 2 Camper Or Motor Home Is Not A “Trailer Coach“
Motor Home—A motor home falls outside the Vehicle Code’s definition of a trailer coach, since a trailer is designed to be pulled by a separate motor vehicle. (VC 635.) Nor does a motor home qualify as an inhabited dwelling house. (See People v. Moreland (1978) 81 CA3d 11, 14 [discharging a firearm at a Winnebago motor home did not violate PC 246 which proscribed shooting at an “inhabited dwelling house or occupied building”].) Moreover, since a motor home is specifically included within the definition of burglary under PC 459, but excluded from PC 460, the inference is that the legislature did not mean for motor homes to come within the ambit of first degree burglary. (See People v. Jones (1926) 78 CA 683, 685 [burglary of caboose included in PC 459 but not PC 460].)
Camper—PC 212.5 permits liability for first degree robbery upon perpetration of the robbery in an “uninhabited dwelling house … [or] … a trailer coach, as defined in the Vehicle Code, which is inhabited …” In People v. Smith (1995) 33 CA4th 1586, 1598, the court concluded that a “camper” is not a “trailer coach” as defined in the Vehicle Code, and hence, a robbery which occurs in a camper is not first degree robbery.
CALJIC NOTE: See FORECITE F 9.42 n5 / F 14.51a.
F 1602 Note 3 First Degree Robbery: Inhabited Dwelling Includes Defendant’s Own Residence (PC 212.5)
In People v. Gauze (1975) 15 C3d 709, 714, it was held that the defendant may not be convicted of burglarizing his or her own residence. However, in People v. Alvarado (1990) 224 CA3d 1165, the Court of Appeal held that the considerations of Gauze with respect to burglary do not apply as to robbery. Accordingly, the Court of Appeal found no compelling reason to PC 212.5 relating to robbery of an inhabited dwelling when the dwelling is the defendant’s own residence.
CALJIC NOTE: See FORECITE F 9.42 n3.
F 1602 Note 4 First Degree Robbery Of ATM Customer: Knowledge Of Victim’s Status Not Required
Because PC 212.5(b) merely enhances punishment when the victim was an ATM customer, there is no requirement that the defendant have subjective knowledge that the victim was an ATM customer. (People v. Ervin (1997) 53 CA4th 1323, 1330-31.)
CALJIC NOTE: See FORECITE F 9.42 n6.
