Tag Archives: Defense Theory Instructions


Defense Theory Instruction On Lesser Included Offense Must Be Given Even If Evidence Of Lesser Offense Is “Unconvincing Or Subject To Justifiable Suspicion”
August 26th, 2019

“California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148–149.) The requirement applies when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. (Id. at pp. 162, 177.) “In […]


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CC 401 SHOULD EXPRESSLY ADDRESS THE FACT THAT MERE KNOWLEDGE OF THE CRIME IS INSUFFICIENT FOR AIDER AND ABETTOR LIABILITY
September 5th, 2017

CALCRIM 401 correctly states that “being present as the scene of the crime or [failure] to prevent the crime does not, by itself, make [a person] an aider and abettor.” (See People v. Durham (1969) 70 C2d 171, 181; In re Jose T. (1991) 230 CA3d 1455, 1460.)   However, the CALCrim language is incomplete […]


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Mens Rea and PTSD
August 22nd, 2016

People v. Herrera (2016) 247 CA4th 467 held that exclusion of psychiatric testimony regarding the defendant’s post-traumatic stress disorder (PTSD) required reversal of his murder conviction. PC 28 and 29 limit the use of mental disorder evidence to negate a defendant’s capacity to form any mental state is prohibited, but may be offered on the […]


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Lesser Related Offenses: Conflict Between Birks and the Right to Present a Defense
July 27th, 2016

In People v. Salazar (2016) 63 C4th 214, 251 the defendant unsuccessfully sought instruction on accessory after the fact as a lesser related offense. The Court, in reliance on People v. Birks (98) 19 C4th 108 [Birks], held that such an instruction is permissible only on stipulation of the parties. (See also People v. Rangel […]


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Defense Has No Burden to Prove Any Specific Facts
July 13th, 2016

CC 100, paragraph 3, sentence 4, provides as follows: “Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty.” CC 100 is technically correct as far as it goes. (See People v. Ibarra (2007) 156 CA4th 1174, 1179.) However, it only discusses the presumption of innocence in the […]


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Small Amount of Controlled Substance Relevant to Knowledge
November 16th, 2015

CC 2376 defines usable amount as an amount in a quantity sufficient to be used as a controlled substance, claiming that there is no requirement that the amount be enough to affect the user. However, the California Supreme Court has made it clear that a very small amount of a controlled substance is relevant to […]


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Marijuana Distribution: Minimal Movement as Defense Theory
November 13th, 2015

CC 2361 defines the term “transports” as carrying or moving an item from one location to another, even if the distance is short. However, minimal movement that does not facilitate use or trafficking does not qualify as transportation. The requirement of volitional transport of methamphetamine from one location to another avoids any unwarranted extension of […]


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Robbery: Defense Theory That Force Was Incidental
September 21st, 2015

The question whether a crime was robbery or grand theft-person frequently arises. The Related Issues section cites a case noting that the force required for robbery must be more than the incidental touching necessary to take the property. (People v. Garcia (1996) 45 Cal. App. 4th 1242.) Where the issue of whether the force used […]


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Self Defense: Applicability When Defense Relies On Theory Of Accident
July 24th, 2015

  People v. Villanueva (2008) 169 Cal. App.4th 41, 51, disagreed with the Related Issues portion of CC 510. Contrary to CC’s interpretation, People v. Curtis (1994) 30 Cal. App. 4th 1337, 1358-1359, did not categorically foreclose self-defense instructions when a defendant claims a killing was accidental. (See also People v. Elize (1990) 71 Cal. […]


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Accident as Defense Theory: Not Required Sua Sponte
June 12th, 2015

  When the defense theory of accident is an attempt to negate the intent element of the crime, the trial judge has no sua sponte duty to give CC 3404. (CC 3404 Bench Notes, Citing People v. Anderson (2011) 51 Cal. 4th 989, 997-998.)


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