SERIES 3300 NON-CALCRIM DEFENSES
F 3305 Innocent Intent
TABLE OF CONTENTS
F 3305 Inst 1 Duress To Negate Criminal Intent
F 3305 Inst 2 Equitable Estoppel/Entrapment By Estoppel
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 NOTES
F 3305 Note 1 Embezzlement: Claim Of Right As Defense
F 3305 Note 2 Good Faith Reliance On Advice Of Attorney
Return to Series 3300 Table of Contents.
F 3305 Inst 1 Duress To Negate Criminal Intent
The prosecution has the burden of proving beyond a reasonable doubt that the defendant had the following criminal intent: ____________ <insert intent element of the charge>. The defendant’s honest belief, even if mistakenly or unreasonably held, that [his] [her] life would be in immediate danger if [he] [she] did not engage in the conduct charged may negate such intent. The prosecution has the burden of proving beyond a reasonable doubt that the required intent was not negated by the defendant’s honest belief that [his] [her] life would be in danger if [he] [she] did not engage in the charged conduct.
If the prosecution has not met this burden you must find the defendant not guilty of ______________ <charged offense>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Duress May Negate Intent Or Mental State – In People v. Smith (1986) 187 CA3d 666, 678-79, the court held that “an honest but unreasonable belief as to duress may negate the specific intent necessary for a robbery.” That is, if the defendant entertained a good faith belief that his life would be in immediate danger if he did not engage in the charged conduct, then felonious intent is negated.
Smith was disapproved without analysis in People v. Bacigalupo (1991) 1 C4th 103, 126 fn 4; see also People v. King (1991) 1 CA4th 288, 297 [concluding that duress does not negate specific intent]. However, notwithstanding Bacigalupo, a federal issue remains. While unreasonable duress may not negate a specific intent to take the property, it may negate felonious (i.e., criminal) intent. The federal constitutional rights to trial by jury and due process (6th and 14th Amendments) are implicated if the state precludes the defendant from using unreasonable duress to disprove the criminal intent element of the charge. [See generally, FORECITE PG VII(C).]
Moreover, an honest and good faith belief which negates criminal intent has been recognized as a defense in other contexts. (E.g., mistake of fact: FORECITE F 3406, F 3407, F 4.35a; mistake of law: F 3407, F 4.003a; claim of right: F 1863.2 Inst 9, F 9.40a.) This is so because a necessary element of the charge, wrongful intent, has not been proven. (See People v. Vogel (1956) 46 C2d 798, 801, fn 2.) Hence, if unreasonable duress negates the requisite criminal intent of the charge then the defendant may not be convicted even if the result is complete exoneration.
Right To Relate Defense Theory To Burden Of Proof – 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
Another way of looking at duress in robbery or theft cases is that the defendant who acts under duress does not intend to permanently deprive the owner of the property taken. Hence, the defendant should have the right to an instruction which pinpoints this theory. (See FORECITE PG III(A).)
CALJIC NOTE: See FORECITE F 4.002a.
F 3305 Inst 2 Equitable Estoppel/Entrapment By Estoppel/Public Authority/Government Authorization
Alternative a:
If, in reasonable reliance upon an official statement of a public officer, defendant had a bona fide belief that the conduct charged in this prosecution was not unlawful, then you may not find [him] [her] guilty of the charged offense.
Alternative b:
If a defendant engages in conduct violative of a criminal statute at the request of a government enforcement officer, with the reasonable belief that the defendant is acting as an authorized government agent to assist in law enforcement activity, then the defendant may not be convicted of violating the criminal statute, because the requisite criminal intent is lacking. The government must prove beyond a reasonable doubt that the defendant did not have a reasonable belief that [he] [she] was acting as an authorized government agent to assist in law enforcement activity at the time of the offense charged in the indictment.
[Source: 9th Circuit Model Jury Instructions – Criminal (2000) 6.10 [] Public Authority or Government Authorization Defense].]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Equitable Estoppel As Defense Theory—“Mistaken reliance upon government officials can be a defense to be considered by the trier of fact. [Citations].” (People v. Sapse (1980) 104 CA3d Supp 1, 13; see also People v. Snyder (1982) 32 C3d 590, 595; U.S. v. Abcasis (2nd Cir. 1995) 45 F3d 39; U.S. v. Lansing (9th Cir. 1970) 424 F2d 225, 227 [reasonable reliance upon misleading information furnished by the government is a defense to a criminal charge]; Rucker & Overland, California Criminal Forms & Instructions, §40.36; but see People v. Chacon (2007) 40 C4th 558 [not applicable when city official relies on the advice of a city attorney regarding the legality of his/her actions under state law].)
Equitable Estoppel As Defense Theory – “Mistaken reliance upon government officials can be a defense to be considered by the trier of fact. [Citations].” (People v. Sapse (1980) 104 CA3d Supp 1, 13; see also People v. Snyder (1982) 32 C3d 590, 595; U.S. v. Abcasis (2nd Cir. 1995) 45 F3d 39; U.S. v. Lansing (9th Cir. 1970) 424 F2d 225, 227 [reasonable reliance upon misleading information furnished by the government is a defense to a criminal charge]; Rucker & Overland, California Criminal Forms & Instructions, §40.36; compare People v. Chacon (2007) 40 C4th 558 [defendant cannot evade liability for general intent crime by defense of good faith reliance on attorney who happened to hold a governmental position].)
In order to establish entrapment by estoppel, a defendant must show: that (1) “an authorized government official,” “empowered to render the claimed erroneous advice,” (United States v. Brebner (9th Cir. 1991) 951 F2d 1017, 1024, 1027); (2) “who has been made aware of all the relevant historical facts,” (Tallmadge, 829 F2d at 774); (3) “affirmatively told him the proscribed conduct was permissible,” (Ramirez-Valencia, 202 F3d at 1109); (4) that “he relied on the false information,” (Tallmadge, 829 F2d at 774); and (5) “that his reliance was reasonable.” (Id.) As to this last element, the Ninth Circuit has stated that “[a] defendant’s reliance is reasonable if ‘a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.'” (Ramirez-Valencia, 202 F3d at 1109 [quoting United States v. Lansing (9th Cir. 1970) 424 F2d 225, 227].)
A defendant has the burden of proving entrapment by estoppel. (See Ramirez-Valencia, 202 F3d at 1109 (9th Cir. 2000) (per curiam) [the defendant “must show that the government affirmatively told him the proscribed conduct was permissible”] (emphasis added); Tallmadge, 829 F2d at 774 [“The defendant must show that he relied on the false information and that his reliance was reasonable.”] (emphasis added); see also United States v. Benning (8th Cir. 2001) 248 F3d 772, 775 [stating that the defendant bears the burden of proof in asserting the affirmative defense of entrapment by estoppel]; United States v. Abcasis (2nd Cir. 1995) 45 F3d 39, 44 [same]; see generally Gilmore v. Taylor (1993) 508 US 333, 341 [124 LEd2d 306; 113 SCt 2112] [“States … may place on defendants the burden of proving affirmative defenses.”].)
United States v. Batterjee (9th Cir. 2004) 361 F3d 1210, held that advice from federal firearms licensee (gun shop) that a non-immigrant alien (foreign student) could buy gun and ammunition established defense of entrapment by estoppel. Additionally, the federal form that the defendant filled out had not been amended to reflect changes in the law prohibiting non-immigrants from possessing weapons.
Public Authority/Government Authorization—See United States v. Bear (2006) 439 F3d 565 [district court committed plain error by not giving, sua sponte, a public authority defense instruction when it was clear that it was the crux of defense as reflected in her testimony and in closing arguments (defendant maintained she was working as a confidential informant for the government when she engaged in illegal drug activities)].
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
Other cases which have recognized “equitable estoppel” as a valid defense to certain types of criminal charges (even though the defense was unavailable or otherwise inapplicable in the particular case) include People v. Gonda (1982) 138 CA3d 774, 780, fn 3 and People v. Cappuccio, Inc. (1988) 204 CA3d 750, 765.
[See Article Bank # A-19 for an updated version of Charles M. Sevilla’s article, “The Defense of Authorization (Or, “But You Said I Could”),” (Revised 2000).]
CALJIC NOTE: See FORECITE F 4.006a.
F 3305 Inst 3 Good Faith Practice Of Medicine (HS 11153 & HS 11154)
You may not convict the defendant of the charged offenses if you conclude that [he] [she] was practicing medicine in good faith when [he] [she] wrote the prescriptions.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Practice Of Medicine As Defense Theory—HS 11153 and HS 11154 prohibit a physician from issuing a prescription for a controlled substance except for legitimate medical purposes. Accordingly, it is a defense to these charges if the defendant was practicing medicine in good faith when he wrote the prescriptions. (People v. Lonergan (1990) 219 CA3d 82, 94.)
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 4.008a.
F 3305 Inst 4 Receiving Stolen Property: Innocent Intent Defense
To be guilty of receiving or concealing stolen property, the defendant must, at the time [he] [she] initially received or concealed the property, have wrongfully intended to aid the thief, deprive the owner of possession, make it more difficult for the owner to discover the theft or to collect a reward. The mere receipt or concealment of stolen property, with knowledge that it has been stolen, is not itself a crime if the property was received or concealed with the intent to restore it to the owner without reward or with any other innocent intent. If you have a reasonable doubt whether the defendant had the required wrongful intent, you must give [him] [her] the benefit of that doubt 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.]
Innocent Intent As Defense Theory—Because PC 496 requires wrongful or criminal intent (see PC 20), the mere receipt of stolen goods with knowledge that it has been stolen is not itself a crime if the property was received with intent to restore it to the owner without reward or with any other innocent intent. (People v. Wielograf (1980) 101 CA3d 488, 494; see also People v. Dishman (1982) 128 CA3d 717, 720-23; FORECITE F 9.40a [claim of right negates wrongful intent in theft and robbery cases].) However, the innocent intent must exist at the moment the stolen property was accepted by the receiver. (Wielograf, 101 CA3d at 494.)
The above instruction sets forth the prosecution’s burden regarding wrongful intent following accepted CALJIC format. (See CJ 5.15, CJ 4.31, CJ 4.50, CJ 2.91; see also, People v. Simon (1995) 9 C4th 493, 500-01 [trial court is required to instruct on who has the burden and the nature of that burden as to defense theories]; EC 502; FORECITE F 4.45a.)
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 claim of right instructions, see FORECITE F 9.40a and F 9.40b.
CALJIC NOTE: See FORECITE F 4.025a.
F 3305 Inst 5 Pinpoint Instruction: Abandoned Or Lost Property
See FORECITE F 1863.2 Inst 4.
F 3305 Inst 6 Claim Of Right: Improper To Require That The Defendant “Openly Took” The Property And Did Not “Conceal”
See FORECITE F 1863.2 Inst 5.
F 3305 NOTES
F 3305 Note 1 Embezzlement: Claim Of Right As Defense
PC 511 creates a defense to the crime of embezzlement (PC 503) where “the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” In effect, the claim of right defense provides that, if a defendant takes property in the good faith belief that it belongs to him/her, the defendant lacks the intent necessary to commit embezzlement. (See People v. Wooten (1996) 44 CA4th 1834, 1848-49.) However, if the defendant attempts to conceal the taking, either when it occurs or after it is discovered, the defense is unavailable. (People v. Stewart (1976) 16 C3d 133, 141.) The defense also does not apply where “although defendant may have ‘believed’ he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith.” (People v. Stewart, 16 C3d at 140; see also, FORECITE F 4.001a, F 4.001b and F 14.00 n4, regarding claim of right in robbery and theft cases.)
PC 511 does not permit a claim of right defense to an embezzlement charge for “self help.” Hence, an employee may not use the defense where funds have been embezzled to satisfy an alleged debt owed by the employer. (See People v. Farsight (1998) 64 CA4th 1402; see also People v. Creath (1995) 31 CA4th 312, 318-19.) Similarly, a partner may not take partnership funds as an offset for a debt owed by the partnership to the partner. (People v. Farsight, 64 CA4th at 1407.)
CALJIC NOTE: See FORECITE F 4.026a.
F 3305 Note 2 Good Faith Reliance On Advice Of Attorney
See FORECITE F 3311 Note 1.
