SERIES 2700 CRIMES AGAINST GOVERNMENT—ESCAPE
F 2764 Escape: Necessity Defense
TABLE OF CONTENTS
F 2764.1 Titles And Identification Of Parties
F 2764.1 Inst 1 Escape: Necessity Defense—Title
F 2764.1 Inst 2 Escape: Necessity Defense—Identification Of Prosecution And Defendant
F 2764.2 Escape: Necessity Defense—Instructions
F 2764.2 Inst 1 Escape: Prosecution Should Be Required To Disprove Necessity Defense Beyond A Reasonable Doubt
F 2764.2 Inst 2 Escape: Necessity Defense—Reasonable Person Standard
F 2764.6 Escape: Necessity Defense—Defense Theories
F 2764.6 Inst 1 Defendant Apprehended Before Having An Opportunity To Report To Authorities
Return to Series 2700 Table of Contents.
F 2764.1 Titles And Identification Of Parties
F 2764.1 Inst 1 Escape: Necessity Defense—Title
See generally, FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2764.1 Inst 2 Escape: Necessity Defense—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 2764.2 Escape: Necessity Defense—Instructions
F 2764.2 Inst 1 Escape: Prosecution Should Be Required To Disprove Necessity Defense Beyond A Reasonable Doubt
*Modify CC 2764 as follows:
1. Replace paragraph 1 with the following:
Alternative a:
The defendant is not guilty of the crime of (escape/attempted escape) unless the prosecution has proved beyond a reasonable doubt that (he/she) did not (escape/attempt to escape) out of necessity.
Alternative b:
The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not (escape/attempt to escape) out of necessity. If the prosecution has not met this burden, you must find the defendant not guilty.
2. Modify necessity elements as follows [added language is underlined; deleted language is stricken]:
In order to establish this defense, the defendant must prove that Necessity applies when:
1. The defendant A person was faced with a specific threat of (death[,]/ [or] forcible sexual attack[,]/ [or] substantial bodily injury) in the immediate future;
2. (There was no time for the defendant person to make a complaint to the authorities/ [or] (There/there) was a history of complaints that were not acted on, so that a reasonable person would conclude that any additional complaints would be ineffective);
3. There was no time or opportunity to seek help from the courts;
4. The defendant person did not use force or violence against prison personnel or other people in the escape [other than the person who was the source of the threatened harm to the defendant];
AND
5. The defendant defendant immediately reported to the proper authorities when (he/she) had attained a position of safety from the immediate threat.
3. Delete CC 2764, final paragraph.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The Prosecution Should Be Required To Disprove Affirmative Defenses Beyond A Reasonable Doubt, Other Than Insanity, Which Bear On The Defendant’s Conduct—Courts have held that requiring the defendant to prove an affirmative defense does not violate the federal constitution so long as the affirmative defense is “collateral to any element of the crime in question.” (People v. Mower (2002) 28 C4th 457, 480; see also Dixon v. United States (2006) 548 US 1 [165 LEd2d 299; 126 SCt 2437] [under federal due process analysis, the question turns on whether the defense negates an element].) However, this distinction between elements and non-elements is too narrow for purposes of applying California’s EC 501 which states: “Insofar as any statute, except Section 522 [insanity], assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096 [presumption of innocence].”
On it’s face, the plain language of EC 501 precludes imposing the burden on the defendant as to any issue except sanity. However, the California Supreme Court has recognized two limited exceptions to the statute.
First, People v. Moran (1970) 1 C3d 755, 760, held that EC 501 does not preclude imposing the burden on the defendant judicially created defenses which are “not based on the defendant’s innocence.” The only such defense recognized by the California Supreme Court is entrapment which “the courts . . . created . . . as a control on illegal police conduct. ‘Out of regard for [the court’s] own dignity, and in the exercise of its power and the performance of its duty to formulate and apply proper standards for judicial enforcement of the criminal law.'” (Id. At pp. 760-761.)
Second, if the fact in issue is not an essential prerequisite to imposition of criminal liability under the statute—e.g., whether or not a witness is an accomplice requiring corroboration—then EC 501 does not apply. (See People v. Tewksberry (1976) 15 C3d 953, 964-65; see also People v. Mower, 28 C4th at 480 [citing Tewksberry for the proposition that EC 501 is applicable to a statute which “allocates the burden of proof to a fact collateral to his or her guilt”].)
Hence, other than in these two situations, the California Supreme Court has consistently recognized that EC 501 requires the prosecution to disprove affirmative defenses. (Mower, 28 C4th at 480, fn. 7; see also id. at fn. 8 [declining to decide whether appellate decisions properly assigned the burden to the defendant as to the affirmative defenses of momentary possession and necessity].)
It is true that Mower contains language suggesting that the scope of EC 501 should be defined by whether or not the affirmative defense relates to an “element” of the charge: “Such defenses [i.e., entrapment] are collateral to the defendant’s guilt or innocence because they are collateral to any element of the crime in question. [Emphasis in original.]” (Id. at 480.) However, the next sentence in Mower stated that the real question is whether or not the defense “bear[s] on the defendant’s conduct….” (Id.) The Court explained: “Thus, the defense of entrapment does not bear on the defendant’s conduct in any way, but solely on the conduct of the police. [Footnote omitted.]” (Ibid.)
Furthermore, in People v. Salas (2006) 37 C4th 967 the Court made it clear that even if a defense does not negate an element of the charge, it still must be disproved by the prosecution. In Salas, the court held that knowledge (or criminal negligence) was an affirmative defense and not an element of securities fraud under Corp. Code 25110. (Salas, 37 C4th at 981-82.) And, because the facts relating to the defense would typically be known to the defendant, Salas assigned the burden of coming forward with evidence to the defendant. However, the court did not place the burden of proof on the defendant. Instead, the Court held that the prosecution must disprove the defense beyond a reasonable doubt. (Id. at 982-83.) Thus, even though the affirmative defense in Salas did not bear on any element of the charged crime, the burden of proof was properly imposed on the prosecution because it did bear on the defendant’s conduct.
Accordingly, any affirmative defense which bears on the defendant’s conduct, such as momentary possession or necessity, must be disproved by the prosecution beyond a reasonable doubt.
Moreover, because EC 501 effectively elevates such affirmative defenses to the status of an element of the offense for burden of proof purposes, the federal constitution (Due Process Clause and Trial By Jury Clause) should also require the prosecution to disprove them beyond a reasonable doubt. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] [focus must be on the consequences of the fact in issue not whether or not it is labeled an element].)
Additionally, because EC 501 is a state created right its arbitrary denial would also violate the Due Process Clause of the federal constitution. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].)
Identification Of Parties—See generally, FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
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 4.3 [Affirmative Defense: Right To Instruction]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2764.2 Inst 2 Escape: Necessity Defense—Reasonable Person Standard
*Modify CC 2764, Element 2, as follows [added language is underlined]:
2. (There was no time for the defendant to make a complaint to the authorities/ [or] (There/there) was a history of complaints that were not acted on, so that a reasonable person in the defendant’s situation, in light of all the circumstances as they were known by or appeared to the defendant, would conclude that any additional complaints would be ineffective);
Points and Authorities
See FORECITE F 860.5 Inst 7.
F 2764.6 Escape: Necessity Defense—Defense Theories
F 2764.6 Inst 1 Defendant Apprehended Before Having An Opportunity To Report To Authorities
*Add to CC 2764, Element 5:
. . . or, if apprehended before the opportunity arose, specifically intended to report immediately to the proper authorities after attaining a position of safety.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction—See People v. Pitcock (1982) 134 CA3d 795, 799-800; People v. Lovercamp (1974) 43 CA3d 823, 832; see also CALJIC 4.44.
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 FORECITECG 13.