SERIES 1800 THEFT AND EXTORTION
F 1861 Jury Does Not Need To Agree On Form Of Theft
TABLE OF CONTENTS
F 1861.1 Titles And Identification Of Parties
F 1861.1 Inst 1 Jury Does Not Need To Agree On Form Of Theft—Title
F 1861.1 Inst 2 Identification Of Prosecution And Defendant
F 1861.2 Jury Does Not Need To Agree On Form Of Theft—Tailoring To Facts: Persons, Places, Things And Theories
F 1861.2 Inst 1 Tailoring To Facts: Specify Act Or Acts Relied On By Prosecution
Return to Series 1800 Table of Contents.
F 1861.1 Titles And Identification Of Parties
F 1861.1 Inst 1 Jury Does Not Need To Agree On Form Of Theft—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1861.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1861.2 Jury Does Not Need To Agree On Form Of Theft—Tailoring To Facts: Persons, Places, Things And Theories
F 1861.2 Inst 1 Tailoring To Facts: Specify Act Or Acts Relied On By Prosecution
*Modify CC 1861, paragraphs 1 and 2 as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ] with theft. based on the following [act[s]] [incident[s]] [______________].
The defendant has been prosecuted for prosecution contends that [this] [these] [act[s]] [incident[s]] constitute theft under (two/________ <insert number>) theories: ________ <insert theories, e.g., theft by trick, theft by larceny, etc.>.
*Add to paragraph 4, sentence 3 as follows:
But all of you do not have toagree on the same theory if the evidence includes more than one act or incident; however, even if you do not agree on a theory of theft, agreement is required on the act or incident alleged to constitute the theft. You may not convict the defendant of theft unless all of you agree that the prosecution has proved that the defendant committed at least one act of theft and you all agree on the same act.
Points and Authorities
CALCRIM 1861 fails to clarify the distinction between theories—to which unanimity does not apply—and acts, to which is does. (See FORECITE F 3500.1 Note 7; FORECITE F 400.2 Inst 1.)
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 12.2 [Duplicity/Unanimity]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
