Tag Archives: Sample Instructions


Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors
April 13th, 2021

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.   Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with […]


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Felony Murder Special Circumstance: Reckless Indifference — Discrete Knowledge Elements Should Be Separately Enumerated
April 6th, 2021

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.) […]


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Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined
March 22nd, 2021

In reliance upon People v. Estrada (1995) 11 Cal.4th 568, 578 the CC states that the court does not have a sua sponte duty to define “reckless indifference to human life.”   Estrada concluded that there is no sua sponte duty as follows: We disagree and find that, when considered in its entirety — as […]


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Felony Murder Special Circumstance: “Actual Killer” Determination — CALCRIM 703 Misstates the Burden of Proof
January 28th, 2021

California law and the federal constitution require a finding of one of the following as an essential element of the felony murder special circumstance enumerated in Penal Code § 190.2(a)(17): The defendant was the actual killer of the victim; or The defendant acted with intent to kill; or The defendant aided and abetted the murder […]


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Felony Murder Special Circumstance: Any One Tison Factor May, by Itself, Leave the Jurors with A Reasonable Doubt
December 23rd, 2020

CC 703 includes the following caveat regarding the specific factors listed for the jury’s consideration as to the reckless indifference and major participant allegations:   No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant [acted with reckless indifference to human life] [was a […]


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Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting
December 21st, 2020

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.) […]


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Felony Murder Special Circumstance: Reckless Indifference — Consciousness of Guilt Not Alone Sufficient to Prove Guilt or Supply Missing Elements
December 18th, 2020

CC 703 invites the jurors to consider the defendant’s actions after the crime in determining the “reckless indifference” by telling the jurors that they may consider the following specific factor: “Did the defendant have an opportunity … to help the victim(s)?” However, the defendant’s post-crime actions are not alone sufficient to prove reckless indifference. “…[A] […]


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CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony
December 16th, 2020

CC 202 instructs the jurors as follows:   If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you.   This language is too limited because jurors should have the ability to request readback of testimony even if […]


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CC 330: “Should Consider” vs. “Consider”
October 27th, 2020

CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old.   Compare Paragraph 2:   In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development. [Emphasis […]


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The Huge Impact of A Tiny Two-Letter Word
October 15th, 2020

In this March 10, 2020 post FORECITE discussed the CALCRIM instructions which define great bodily injury as a “significant or substantial physical injury … that is greater than minor or moderate harm.” The post suggested, in reliance on People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 that — as argued by the prosecutor in […]


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