Tag Archives: Sample Instructions


Murder Conviction Reversed Due to Erroneous Reliance on CALCRIM Instructions
August 14th, 2017

In Washington v. Texas (1967) 388 U.S. 14, the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to present exculpatory testimony of an accomplice to the jury. In Cool v. United States (1972) 409 U.S. 100, 104, the Court held that instructing a jury to ignore defense accomplice testimony […]


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Confusing Language of CC 121 Regarding Foreign Language Recordings Should Be Clarified
April 28th, 2017

In August 2016 the CALCRIM committee revised CC 121 to provide as follows: You must rely on the transcript, even if you understand the language in the recording. Do not restranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to […]


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Sample Instructions: Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017

In this prior post it was suggested that the term “expert” should not be used when referring to witnesses in the jury instructions. Below is a non-exhaustive list of sample instructions which eliminate the term “expert” from the instructions: F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction *Modify CC […]


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CC 370 (Motive): Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?
March 14th, 2017

The CSC has suggested that lay jurors will readily understand the subtle distinction between intent – which is an element of many crimes – and motive – which is generally not an element …[A]lthough malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not […]


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Motive Instruction: Clarification Of Problematic Burden Shifting Language
March 14th, 2017

As revised in August 2016, CALCRIM 370 provides as follows: The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant […]


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Defense Theory: BAC of Less than 0.05% Warrants Rebuttal Presumption That Defendant Was Not Under the Influence
November 27th, 2015

VC § 23610(a)(1), provides “[i]f there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” Thus, there is a statutory presumption that a defendant was […]


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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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The Defendant Has No Burden Of Proof Re: Consent
October 16th, 2015

The Related Issues to CC 1700 state that “consent by the owner or occupant of property may constitute a defense to burglary.” However, no instruction is provided for this purpose. The Court of Appeal in People v. Sherow (2011) 196 Cal. App. 4th 1296, disapproved a consent instruction put together by a trial judge because […]


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Instruction on Necessary Intent to Commit the Act without Consent of the Victim
October 9th, 2015

People v. Dillon (2009) 174 Cal. App. 4th 1367, upheld a conviction using CC 890 in conjunction with CC 1045 dealing with the target offense of sexual penetration by force or fear. However, in 2010, when the same defendant in the Dillon case filed a petition for writ of habeas corpus in a federal court, […]


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