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SERIES 3300 NON-CALCRIM DEFENSES

  • F 3300 BASIC PRINCIPLES: DEFENSES AND DEFENSE THEORIES
  • I.Determining Who Has The Burden Of Proof As To A Defense
  • II. Defendant’s Right To Relate The Defense Theory To An Element Of The
    Charge
  • III. Argumentative Instructions vs. Proper Pinpoint Instructions
  • IV. Improper To Instruct On Defense Burden To Produce Evidence Or To Suggest That Defense Must “Raise” Or “Create” A Reasonable Doubt
  • V. Any Single Fact May Be Sufficient To Leave The Jury With A Reasonable
    Doubt
  • VI. Judge’s Duty To Instruction On Defenses
  • VII. Neither Defendant’s Testimony Nor Affirmative Defense Evidence Is
    Necessary For Instruction On Defense Theory
  • VIII. Defendant’s Testimony Constitutes Substantial Evidence Even If Implausible And Seriously Contradicted
  • IX. Requested Instructions: Doubts Resolved In Favor Of Defendant
  • X. Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On
    “Third Scenario” May Be Appropriate
  • XI. Applicability To Sua Sponte And Requested Instructions
  • XII. Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence
  • F 3301 Third-Party Guilt
    • F 3301 Inst 1 (a & b) Third-Party Culpability As Defense Theory
    • F 3301 Inst 2 (a & b) Reasonable Doubt Must Be Resolved In Favor Of Defendant
    • F 3301 Note 1 Third-Party Culpability: Sua Sponte Duty
    • F 3301 Note 2 Uncharged Acts: Admissibility Of Third Party Guilt Evidence
    • F 3301 Note 3 Third-Party Guilt Defense: Threats From Alleged Third-Party Culprit
  • F 3302 Misconduct Of Prosecution Or Police
    • F 3302 Note 1 Outrageous Government Misconduct: Due Process Doctrine
    • F 3302 Note 2 Outrageous Government Misconduct: Outrageous Prosecutorial Misconduct
    • F 3302 Note 3 Outrageous Government Misconduct: Not Available Vicariously
    • F 3302 Note 4 Inconsistent Prosecution Theories
  • F 3303 Impairment Of Defendant’s Intent And/Or Mental State
    • F 3303 Inst 1 (a & b) Physical Trauma May Negate Mens Rea
    • F 3303 Note 1 Epilepsy As Defense Theory Even If Crime Did Not Occur During A Seizure
    • F 3303 Note 2 Defense Theory: Fetal Alcohol Syndrome (FAS)
  • F 3304 Consent
    • F 3304 Inst 1 Burglary: Defense Of Consent
    • F 3304 Inst 2 Battery: Defense Of Consent (PC 242)
  • F 3305 Innocent Intent
    • F 3305 Inst 1 Duress To Negate Criminal Intent
    • F 3305 Inst 2 Equitable Estoppel/Entrapment By Estoppel/Public Authority/Government Authorization
    • F 3305 Inst 3 Good Faith Practice Of Medicine (HS 11153 & HS 11154)
    • F 3305 Inst 4 Receiving Stolen Property: Innocent Intent Defense
    • F 3305 Inst 5 Pinpoint Instruction: Abandoned Or Lost Property
    • F 3305 Inst 6 Claim Of Right: Improper To Require That The Defendant “Openly Took” The Property And Did Not “Conceal”
    • F 3305 Note 1 Embezzlement: Claim Of Right As Defense
    • F 3305 Note 2 Good Faith Reliance On Advice Of Attorney
  • F 3306 Possession Based Offenses—Defense Theories
    • F 3306 Inst 1 (a & b) Possession: Immediate And Knowing Control Required
    • F 3306 Inst 2 (a-e) Possession: Access Alone Not Sufficient
    • F 3306 Inst 3 Mere Presence Not Sufficient For Possession
    • F 3306 Inst 4 Mere Presence In Vehicle Not Sufficient For Possession
    • F 3306 Inst 5 Constructive Possession: Premises Shared By More Than One Person
    • F 3306 Inst 6 Possession: Ownership Or Occupancy Not Sufficient
    • F 3306 Inst 7 Possession: Passenger In Vehicle Not Sufficient
    • F 3306 Inst 8 Constructive Possession: Participation In Drug Transaction Does Not Prove Possession Of Drugs Or Money Possessed By Others
    • F 3306 Inst 9 Possession: Accidental Possession Negates Intent
    • F 3306 Inst 10 Possession: Definition Of Control
    • F 3306 Inst 11 Possession: Impact Of Intoxication On Knowledge Element
  • F 3306 NOTES
    • F 3306 Note 1 Possession—Research Notes
    • F 3306 Note 2 Possession: Juror Unanimity
    • F 3306 Note 3 Possession: Duty To Define “Right To Control”
    • F 3306 Note 4 Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence
    • F 3306 Note 5 Improper To Presume Possession Solely From Fact That Defendant Drove The Vehicle Containing Secreted Drugs
  • F 3307 Immunity
    • F 3307 Inst 1 Immunity of “Police Agent” In Narcotics Deal (HS 11367)
  • F 3308 Jurisdiction
    • F 3308 Inst 1 Defense Of Former Jeopardy
  • F 3308 NOTES
    • F 3308 Note 1 Former Jeopardy: Proposition 115 Update
    • F 3308 Note 2 Former Jeopardy: Fundamental Nature of the Right
    • F 3308 Note 3 Former Jeopardy: Whether Jury’s Rejection Of Enhancement Constitutes An Express Acquittal And Forecloses Any Retrial
    • F 3308 Note 4 Former Jeopardy: PC 1157 Reduction Bars Retrial
    • F 3308 Note 5 Former Jeopardy: Conviction Of Substantive Offense Not A Bar To Subsequent Conspiracy Charge
    • F 3308 Note 6 Former Jeopardy: No Requirement Of Personal Waiver
    • F 3308 Note 7 Former Jeopardy/Collateral Estoppel: Effect Of Finding Gun Use Untrue
    • F 3308 Note 8 Former Jeopardy: Grady v. Corbin Overruled
    • F 3308 Note 9 Former Jeopardy: No Bar To Conviction As Accessory And Perpetrator
    • F 3308 Note 10 Collateral Estoppel Precludes Re-Litigation Of Underlying Felony And Felony Murder Convictions
    • F 3308 Note 11 Collateral Estoppel Bars Relitigation Only If All Elements Were Resolved
    • F 3308 Note 12 Former Jeopardy: Does Conviction Of Lesser Offense Constitute Implied Acquittal Of Greater Offense?
    • F 3308 Note 13 Forfeiture: Double Jeopardy Defense
    • F 3308 Note 14 Former Jeopardy: Inapplicable To Premeditated Attempted Murder
    • F 3308 Note 15 Former Jeopardy: Lesser Offense Distinguished From Penalty Enhancement
    • F 3308 Note 16 New Charges After Appeal: No Retrial For Same Act Under Different Statute Following Successful Appeal Of Original Conviction Based On Insufficiency Of Evidence
    • F 3308 Note 17 Double Jeopardy: Prosecutor Misconduct—Argument Intended To Provoke A Mistrial
    • F 3308 Note 18 Double Jeopardy: Continuing Offenses
    • F 3308 Note 19 Double Jeopardy: Death Penalty—Inapplicable To Life Sentence Imposed As A Matter Of Law After Hung Jury
    • F 3308 Note 20 Law Of The Case Doctrine
    • F 3308 Note 21 Double Jeopardy: Dismissal Of Jury Without Legal Necessity Or Defendant’s Consent Bars Retrial
    • F 3308 Note 22 Law Of The Case Doctrine: Exceptions
    • F 3308 Note 23 Double Jeopardy: Pre-Verdict Acquittal
    • F 3308 Note 24 Collateral Estoppel: Not Applicable Against Defendant If Factual Determination Is Not Final
  • F 3309 Medical Marijuana
    • F 3309 Note 1 Non-CALJIC Defenses: Medical Marijuana Initiative (Prop. 215)
  • F 3310 COMMISSION OF UNCHARGED NON-INCLUDED OFFENSE
    • F 3310 Inst 1 Defense Theory That Defendant Committed Uncharged Non-Included Offense And Not The Charged Offense
    • F 3310 Inst 2 Explanation That Jury Has No Option Other Than Conviction Of Charged Offense Or Acquittal Due To Prosecution’s Charging Decision
  • F 3311 RELIANCE ON ADVICE OF COUNSEL
    • F 3311 Inst 1 Reliance On The Advice Of Counsel May Negate Specific Intent
  • F 3311 NOTES
    • F 3311 Note 1 Good Faith Reliance On Advice Of Attorney
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