Tag Archives: Due Process

CC 207: Proof Need Not Show Actual Date: Exception When Evidence Focuses on One Day to Exclusion of Others
September 5th, 2016

“[W]hen the prosecution’s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), [that] it is improper to give the jury an instruction using the ‘on or about’ language.” (People v. Jennings (1991) 53 Cal.3d 334, 358–359; People v. Gavin […]

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Due Process Challenge To Use Of Domestic Violence As Character Evidence
August 31st, 2015

Defense counsel should challenge the admission of domestic violence evidence as character evidence on federal due process grounds. However, even if such evidence is admitted, defense counsel should challenge this CC with respect to the use of such evidence. California case law notwithstanding, this instruction is unintelligible and unconstitutionally reduces the burden of proof. The […]

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“On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense
March 20th, 2015

  Ordinarily, the state need not prove the precise date on which an alleged offense occurs. (See PC 955.) CC 207 is the CALCRIM instruction on this point.   However, where the state charges a defendant with a criminal offense on occurring during particular dates — and when the dates form the basis of the […]

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What Is A “Major Participant” Within The Meaning Of Penal Code 190.2(d)?
March 7th, 2015

  Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment […]

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Propensity Instruction: Due Process Challenge
May 1st, 2014

  People v. Villatoro (2012) 54 Cal. 4th 1152, upheld a modified CC 1191 instruction, which stated that all offenses must be proven beyond a reasonable doubt. This instruction did not violate defendant’s due process rights or impermissibly lower the standard of proof even though it did not specifically address the standard of proof to […]

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