Judicial Council Task Force on Jury Instructions



Appointed by the Honorable Chief Justice Ronald M. George



HON. CAROL A. CORRIGAN



Chair



HON. JAMES D. WARD,



Vice-Chair



COMMITTEE MEMBERS



MS. SARAH B. BENARD



HON. SANDRA LYNN MARGULIES



PROF. KATE BLOCH



HON. STEVEN Z. PERREN



HON. ROGER W. BOREN



MS. PAMELA A. RATNER



HON. FLORENCE-MARIE COOPER



MR. DENNIS RIORDAN



HON. JOHN DARLINGTON



PROF. PETER TIERSMA



MR. PATRICK R. DIXON



HON. RONALD W. TOCHTERMAN (RET.)



MR. JEFFREY GALE



ADMINISTRATIVE OFFICE OF THE COURTS



OFFICE OF GENERAL COUNSEL



MS. ELIZABETH GIVENS



MS. MELISSA W. JOHNSON



MS. RACHEL GRUNBERG



MS. MARY LIDDY



______



CRIMINAL JURY INSTRUCTIONS



TABLE OF CONTENTS



Preface ........................................................ i



Drafting Policy ............................................... iii



Key to Using Instructions ................................... vii



Series 10 - Pre-trial Instructions 1



10. Trial Process.......................................... 2



20. Cautionary Admonitions: Jury Conduct........... 3



30. Note-Taking........................................... 5



40. Reasonable Doubt.................................... 6



50. Evidence............................................... 8



60. Witnesses.............................................. 10



Series 100 - Post-trial Instructions 12



100. Duties of Judge and Jury............................ 13



110. Reasonable Doubt.................................... 15



120. Evidence.............................................. 17



130. Witnesses............................................. 19



190. Pre-Deliberation Instructions...................... 22



Series 300 - Evidence 24



300. Circumstantial Evidence............................ 25



306. All Available Evidence.............................. 28



307. Proof Need Not Show Actual Date................ 29



315. Consciousness of Guilt: False Statements........ 30



316. Consciousness of Guilt: Fabrication and Suppression of

Evidence............................ 32



318. Defendant's Flight................................... 34



330. Limited Purpose Evidence in General............. 35



332. Multiple Defendants: Limited Admissibility of

Evidence.............................................. 36



333. Multiple Defendants: Limited Admissibility of Defendant's

Statement.............................. 37



338. Other Perpetrator..................................... 38



339. Consent: Prior Sexual Intercourse................ 39



340. Miranda-Defective Statements..................... 40



341. Adoptive Admissions............................... 41



348. Consciousness of Guilt: Failure to Deny or Explain

Evidence.................................. 43



Series 400 - Witnesses 45



400. Single Witness's Testimony.................... 46



405. Character of Defendant......................... 48



406. Cross Examination of Character Witness.... 50



408. Exercise of Privilege by Witness.............. 51



415. Eyewitness Identification....................... 52



420. Testimony of Child 10 Years or Younger.... 55



Series 500 - Aiding & Abetting, Inchoate And Accessorial Crimes 56



500. Aiding and Abetting: General Principles......... 57



501. Aiding and Abetting: Intended Offenses......... 59



502. Aiding and Abetting: Natural and Probable Consequences Doctrine

(Target and NonTarget Offenses Charged)........................... 64



503. Aiding and Abetting: Natural and Probable Consequences Doctrine

(Only Non-Target Offense Charged)....................................

68



520. Accessories............................................ 71



530. Solicitation ........................................... 73



531. Solicitation of a Minor .............................. 76



Series 600 - Defenses & Insanity 77



600. Alibi................................................... 78



610. Duress or Threats.................................... 80



615. Necessity.............................................. 82



616. Necessity: Escape from Prison or County Jail... 84



620. Accident and Misfortune........................... 86



640. Unconsciousness.................................... 88



650. Voluntary Intoxication.............................. 91



660. Mistake of Fact....................................... 93



661. Mistake of Law...................................... 96



680. Statute of Limitations................................ 98



690. Insanity................................................ 102



Series 700 - Homicide 105



700. Homicide: General Principles...................... 106



701. Justifiable Homicide: Self-Defense............... 107



720. Murder With Malice Aforethought............... 111



721. Murder: Degrees.................................... 114



725. Felony Murder: First Degree...................... 119



726. Murder by Mayhem................................. 123



727. Felony Murder: Second Degree................... 126



730. Malice Versus Felony Murder..................... 131



735. Voluntary Manslaughter: Imperfect Self



Defense............................................... 132



736. Voluntary Manslaughter: Heat of Passion....... 135



Series 800 - Robbery 139



800. Robbery............................................... 140



805. Robbery: Degrees................................... 145



810. Carjacking........................................... 147



Series 1050 - Arson 149



1050. Arson................................................ 150



1053. Arson: Great Bodily Injury....................... 153



1055. Arson: Inhabited Structure........................ 156



1060. Unlawfully Causing a Fire........................ 159



1063. Unlawfully Causing a Fire: Great Bodily



Injury................................................ 161



1065. Unlawfully Causing a Fire: Inhabited

Structure............................................. 164



1070. Possession of Incendiary or Flammable

Device............................................... 167



1075. Attempted Arson................................... 169



Series 1100 - Sex Offenses 171



1100. Rape by Force, Fear, or Threats.................. 172



1105. Rape of an Intoxicated Woman .................. 176



1108. Rape of an Unconscious Woman................ 178



1110. Rape of a Disabled Woman....................... 180



1114. Rape by Fraud...................................... 182



1120. Oral Copulation by Force, Fear or Threats..... 184



1125. Oral Copulation of an Intoxicated Person...... 188



1128. Oral Copulation of an Unconscious Person.... 190



1130. Oral Copulation of a Disabled Person.......... 192



1132. Oral Copulation of a Disabled Person in a Mental

Hospital..................................... 194



1134. Oral Copulation by Fraud......................... 196



1135. Oral Copulation while in Custody............... 197



Series 1300 - Theft 199



1300. Theft by Larceny................................... 200



1305. Theft: Degrees....................................... 204



1308. Theft by False Pretense............................ 206



1310. Theft by Trick...................................... 210



1312. Theft by Embezzlement........................... 212



Series 1400 - Burglary 214



1400. Burglary............................................. 215



1405. Burglary: Degrees.................................. 221



{i}



TASK FORCE ON JURY INSTRUCTIONS



CRIMINAL SUBCOMMITTEE



Preface



Introduction



The California Judicial Council Task Force on Jury Instructions has

been charged by Chief Justice Ronald George with writing "jury

instructions that both accurately state the law and are more easily

understandable to jurors."[i] The draft instructions that follow are

only a section of the much larger set of instructions that the Task

Force Subcommittee on Criminal Instructions has drafted. The

Subcommittee hopes that release of this group of instructions now will

stimulate public critique and enable the drafters to refine both the

particular instructions and the more global choices about format and

approach as the drafting effort continues.



The Task Force has based the instructions on a de novo review of

relevant decisional precedent and statutory materials because a license

to use the copyrighted CALJIC materials was not available. These

materials are circulated under the Copyright of the California Judicial

Council. They have not yet been officially approved for use.



Background: Creation of the Task Force



In December of 1995, the Judicial Council established a Blue Ribbon

Commission on Jury System Improvement. The Commission's mission was to

"conduct a comprehensive evaluation of the jury system and [make]

timely recommendations for improvement."[ii] After extensive study, the

commission made a number of recommendations to the Chief Justice and

the Judicial Council, one of which was that the Council create a Task

Force on Jury Instructions to draft more understandable instructions.

The recommendation stemmed from the Commission's conclusion that "jury

instructions as presently given in California and elsewhere are, on

occasion, simply impenetrable to the ordinary juror."[iii]



In light of the Commission's view that jurors could be accurately

instructed on the law in language more easily absorbed and understood,

the Judicial Council acted on the recommendation, creating the current

Task Force. The Chief Justice noted the two principal goals underlying

the creation of more intelligible instructions are "(1) making juror's

experiences more meaningful and rewarding and (2) providing clear

instructions that will improve the quality of justice by insuring that

jurors understand and apply the law correctly in their

deliberations."iv



{ii}



Purpose of this Release for Comment



The Chief Justice encouraged the Task Force to solicit broad input from

those representing a wide rage of views and experience. In response,

the drafters seek public commentary at this intermediate point in the

process. Commentary at this stage can inform both revisions of existing

drafts and choices for the remaining instructions. We have a released a

small but representative sample rather than a much larger number of

completed drafts to facilitate input on an expedited basis. The Task

Force is interested in reactions to style, format, legal accuracy,

clarity, and usefulness of accompanying bench notes and commentary. The

Task Force is not a law revision commission. Our goal is to produce

instructions that accurately explain the existing law in a manner the

average juror can readily understand and that the trial bench and bar

will find helpful. We appreciate your willingness to assist in this

effort.



______



i. Videotape, Address of Chief Justice Ronald George to Task Force on

Jury Instructions (Judicial Council of California, Administrative

Office of the Courts 2/18/97).



ii. Final Report of the Blue Ribbon Commission on Jury System

Improvement (Judicial Council of California,Administrative Office of

the Courts 5/6/1996) p.1.



iii. Id. at p. 93



iv. See, supra, note 1.



{iii}



Drafting Policies



The members of the task force carefully considered, and sometimes

extensively debated, many issues concerning how the instructions should

be drafted. The decisions of the task force on the most significant of

those issues are discussed and explained below.



Drafting Guidelines



The task force reviewed the literature addressing jury instructions and

considered the recommendations for improving instructional clarity and

comprehensibility. (See, e.g., Lind and Partridge, Suggestions for

Improving Juror Understanding of Instructions; Pattern Jury

Instructions Suggested by the Federal Judicial Center (1987);

Schwarzer, Communicating with Juries: Problems and Remedies , 69

Cal.L.Rev. 731 (1981); Charrow and Charrow, Making Legal Language

Understandable: A Psycholinguistic Study of Jury Instructions, 79

Columbia L.Rev. 1306 (1979); and Tiersma, Reforming the Language of

Jury Instructions, 22 Hofstra L.Rev. 37 (1993).) When drafting the

instructions, we applied many of the specific techniques suggested by

the literature, including the following:



* Avoid using nominalizations.



* Use "modal" verbs (must, should, may) to clarify the jury's task.



* Avoid redundancy or unnecessary words.



* Use the active voice.



* Use short sentences.



* Keep the subject close to the verb; move dependent phrases to the

beginning or end of the sentence.



* Avoid omitting relative pronouns and auxiliary verbs.



* Avoid double negatives.



* Be concrete rather than abstract.



* Avoid instructing the jurors about things they do not need to know.



* Adopt a structure that is logical and easy to follow.



In addition to these general principles, the task force adopted the

following specific guidelines.



References to the parties



The task force chose to refer to the lawyer for the People as "the

prosecutor." Although some members thought the word prosecutor may have

a negative connotation compared to "district attorney," most felt that

it was a neutral word and that jurors were likely to understand it.

"District attorney," although neutral



{iv}



and understandable, would not

always be accurate, because a different agency (such as the office of

the Attorney General) might prosecute the case, and we did not want the

judge to have to modify each instruction in such an instance. After much

consideration, we chose to use "the defendant" to refer to the party

being prosecuted. Most members felt that this term did not have a

negative connotation, and that it was commonly used in the courtroom.



Statutory and caselaw formulations



The task force felt strongly that it was not our role to suggest

changes in the law or to resolve conflicts in the case law interpreting

statutes. Rather, our mandate was to restate the existing law in

understandable terms. We closely followed formulations of the law

contained in statutes and cases, substituting a more understandable

word if an accurate synonym for the legal language could be found, and

defining terms when necessary.



For example, where proof by a "preponderance of the evidence" was

required, we substituted the equivalent language "more likely than

not." Conversely, in the "reasonable doubt" instruction, we considered

adopting the formulation used in the federal courts. The federal

instruction did not include the concept that the jury must have an

abiding conviction, which is part of the standard set out in Penal Code

section 1096. We chose to use the language contained in the California

statute, and clarified it by reordering and substituting simpler terms

where appropriate, without omitting any of the concepts contained in

the statute.



In a few instances where a clear conflict existed in the case law, we

drafted alternative formulations to allow the trial judge to decide

which was appropriate. If the statutory language was ambiguous, but had

been clarified by case law, we used the approved and more

comprehensible language.



Tailoring the instruction to the case



We recognized that sometimes it would be helpful for the jurors to have

instructions tailored to the specific case. For example, in some

jurisdictions the name of the defendant and the name of the victim are

inserted into the instruction. Competing with the benefit of this

approach is the potential burden imposed on trial judges and their

staffs who must prepare the instructions. At some point in the future,

the instructions will undoubtedly be available in an electronic format

and the substitution of names or other specific words within the

instructions will be possible with a simple keystroke. Because many

judges currently rely on instructions printed on paper, however, we did

not want to make the use of these instructions unnecessarily

complicated or increase the risk of error and therefore did not rely on

a `fill-in-the-blank' approach.



{v}



Generally, we did not require that the instructions be tailored to the

facts of the case, except (1) if the instruction would otherwise be

confusing (for example, if the instruction on the defendant's

statements were given in a multi-defendant case), or (2) if the

instruction would be given only on request, so that the attorney

requesting it would have the opportunity to tailor it to the facts (for

example, see instruction 408, Exercise of Privilege by Witness.).



Elements of the Crimes



The task force gave a good deal of thought to defining the elements of

crimes. The major issue was whether to present definitions in the

abstract ("a theft is committed when a person takes property ...") or

to present them as applied to the case ("the defendant is guilty of

robbery if he took property ....") The task force decided to define the

crimes concretely with reference to the defendant and in the past

tense. This approach is endorsed by the literature on juror

comprehension and gives the jury clearer direction in making its

decision.



Structure



We attempted to organize instructional issues and concepts logically.

Related concepts and fragments integrated into a single instruction

rather than presented as discreet, unrelated pieces of information.



Tone



The task force's mandate is to produce instructions that are accurate

and comprehensible to jurors. In setting a tone, the task force

attempted to balance the need for clarity of language and `plain

English' choices with the formality necessary given the importance of

the instructions.



Bench Notes



The bench notes are organized into categories. Following each

instruction is a statement indicating whether the judge has a duty to

give the instruction, either sua sponte or on request. A section for

related instructions follows and lists other associated and commonly

given instructions.



The next section describes the authority relied on for the

instructional language and other definitions. We have also included a

"Commentary" section where specific drafting choices are explained, or

other issues are addressed by the task force. Finally, a list of

approved lesser-included offenses is provided for the instructions on

elements of crimes and a section on related issues is included for



{vi}



all instructions. The latter section is intended to address finer points

of law and factually specific issues relating to the instructions.



{vii}



Key to Using Instructions



The instructions are written in bold face type. Material that is

bracketed is optional and should be given under the facts of the case.

Material that is in parentheses must be given but a choice must be

made.



For example, in the arson instruction a definition of structure has

been provided. (See instruction 1050, Arson, for full text.)



[A structure is any (building/bridge/tunnel/power plant/commercial

orpublic tent).]



The brackets around the material mean that the definition is given only

if a structure has allegedly been burned. If this definition is given,

the type of structure would be selected from the alternatives enclosed

in parenthesis depending upon the facts of the case.



{1}



Series 10 - Pre-trial Instructions



10. Trial Process



20. Cautionary Admonitions: Jury Conduct



30. Notetaking



40. Reasonable Doubt



50. Evidence



60. Witnesses



Task Force Comments on this Series



The task force decided that the optimal way to organize the many

pre-trial instructions required or recommended to be given was in the

form of a comprehensive script. This material is organized in the

categories listed above and contains instructions that must be given

sua sponte in every case in addition to generally applicable

instructions that are recommended in every case.



A similar "posttrial" script has been included to be delivered at the

close of evidence. Although there is some overlap in the instructional

issues in each script, the task force believed it valuable to provide

judges with tailored instructions, which did not require modification,

for each stage of the trial.



{2}



10. Trial Process (Before or During Voir Dire)



______



1. Jury service is very important and I would like to welcome you and

thank you for your service. Before we begin, I am going to describe for

you how the trial will be conducted, and explain what you and the

lawyers and I will be doing. At the end of the trial, I will give you

more detailed guidance on how you are to go about reaching your

decision.



2. The first step in the trial is the prosecutor's opening statement.

The defense may also choose to give an opening statement. An opening

statement is not evidence. Its only purpose is to give you an overview

of what the attorneys expect the evidence will show.



3. Next, the prosecution will offer its evidence. Evidence usually

includes witness 12 testimony and exhibits. After the prosecution

presents its evidence, the defense may also present evidence but is not

required to do so. Because (he/she) is presumed innocent, the defendant

does not have to prove that (he/she) is not guilty.



4. After you have heard all the evidence and the attorneys give their

final arguments, I will instruct you on the law that applies to the

case. You must follow all of my instructions, even if you disagree with

them.



5. After you have heard the arguments and instructions, you will go to

the jury room to deliberate and reach a decision.



______



BENCH NOTES



Instructional Duty



There is no sua sponte duty to give an instruction outlining how the

trial will proceed. This instruction has been provided for the

convenience of the trial judge who may wish to explain the trial

process to jurors.



{3}



20. Cautionary Admonitions: Jury Conduct (After Jury is Selected)



______



1. I will now explain some basic rules of law and procedure. These

rules ensure that both sides receive a fair trial.



2. During the trial, do not talk about the case or about any of the

people or any subject involved in it with anyone, not even your family

or friends. You must not talk about these things with the other jurors

either, until the time comes for you to begin your deliberations.



3. As jurors, you may discuss the case together only after all of the

evidence has been presented, the attorneys have completed their

arguments, and I have instructed you on the law. After I tell you to

begin your deliberations, you must11 discuss the case only in the jury

room, and only when all jurors are present.



4. You must not listen to anyone who tries to talk to you about the

case or about any of the people or subjects involved in it. If someone

asks you about the case, tell him or her that you cannot discuss it. If

that person keeps talking to you about the case, you must end the

conversation and immediately report the incident to the bailiff. If

anyone tries to influence you or any other member of the jury, you must

promptly report that to the bailiff.



5. When the trial has ended and you have been released as jurors, you

may discuss the case with anyone. But under California law, you must

wait at least 90 days before negotiating or agreeing to accept any

payment for information about the case.



6. You must not allow anything that happens outside of the courtroom to

affect your decision. During the trial, do not read, listen to, or

watch any news reports about the case.



7. Do not do any research on your own or as a group. Do not use a

dictionary or other reference materials, investigate the facts or law,

conduct any experiments, or visit the scene of any event involved in

this case. If you happen to pass by the scene, do not stop or

investigate.



8. Keep an open mind throughout the trial. Do not make up your mind

about the verdict or any issue until after you have discussed the case

with the other jurors during deliberations. Do not take anything I say

or do during the trial as an indication of what I think about the

facts, the witnesses, or what your verdict should be.



{4}



9. Do not let bias, sympathy, prejudice, or public opinion influence

your decision.



10. If a juror violates one of these directions, please notify the

bailiff promptly.



[11. If, during the trial, you have a question that you believe should

be asked of a witness, you may write out the question and send it to me

through the bailiff. I will discuss the question with the attorneys and

decide whether it may be asked.]



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct the jurors on how they must

conduct themselves during trial. (Pen. Code, § 1122.)



The instruction in paragraph 11 may be given at the court's discretion.



AUTHORITY



Statutory Admonitions » Pen. Code, § 1122.



Avoid Discussing the Case » People v. Pierce (1979) 24 Cal.3d 199; In

re Hitchings (1993) 6 Cal.4th 97; In re Carpenter (1995) 9 Cal.4th 634,

646-58.



Avoid News Reports » People v. Holloway (1990) 50 Cal.3d 1098, 1108-11.



No Independent Research » People v. Karis (1988) 46 Cal.3d 612, 642;

People v. Castro (1986) 184 Cal.App.3d 849, 853; People v. Sutter

(1982) 134 Cal.App.3d 806, 820.



No Bias, Sympathy, or Prejudice » People v. Hawthorne (1992) 4 Cal.4th

43, 73.



Judge's Conduct as Indication of Verdict » People v. Hunt (1915) 26

Cal.App. 514, 517.



{5}



30. Note-Taking



______



You have been given notebooks and may take notes during the trial.

Please leave your notebooks on your chair at the end of each court

session. You may take your notes into the jury room during

deliberations. Here are some points to consider if you take notes:



1. Your notes may be inaccurate or incomplete.



2. The court reporter is making a record of everything said during the

trial. During your deliberations, you may ask that the court reporter's

notes of particular testimony be read to you.



3. Note-taking may tend to distract you. It may affect your ability to

listen carefully to all the testimony and to watch the witnesses as

they testify.



4. You should use your notes only to remind yourself of what happened

during the trial. If you cannot agree about what the testimony was on

an important point, you may ask that the court reporter's record be

read to you. You must accept the court reporter's record as accurate.



I do not mean to discourage you from taking notes. I believe you may

find it helpful. However, if you decide to take notes, please bear in

mind the points that I have made.



______



BENCH NOTES



Instructional Duty



There is no sua sponte duty to instruct on note-taking; however,

instruction on this topic has been recommended by the Supreme Court.

(People v. Morris (1991) 53 Cal.3d 152, 214.)



AUTHORITY



Jurors' Use of Notes » People v. Whitt (1984) 36 Cal.3d 724, 746.



{6}



40. Reasonable Doubt



______



1. I will now explain the presumption of innocence, the prosecutor's

burden of1 proof, and the charges against the defendant. The defendant

in this case is charged with ______ [insert charge[s]] and has pleaded

not guilty. The fact that a criminal charge has been filed against the

defendant is not evidence that the charge is true. You must not be

biased against the defendant just because (he/she) has been arrested

and charged with a crime.



2. A defendant in a criminal case is presumed to be innocent. This

presumption requires that the prosecutor prove each element of the

crime[s] [and special allegation[s]] beyond a reasonable doubt. Proof

beyond a reasonable doubt is proof that leaves you with an abiding

conviction that the charge is true. The evidence need not eliminate all

possible doubt because everything in life is open to some possible or

imaginary doubt.



3. In deciding whether the prosecution has proven its case beyond a

reasonable doubt, you must impartially compare and consider all the

evidence. Unless the evidence proves the defendant guilty beyond a

reasonable doubt, (he/she) is entitled to an acquittal and you must

find (him/her) not guilty.



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on the presumption of

innocence and the state's burden of proof before deliberations. (People

v. Vann (1974) 12 Cal.3d 220, 225- 27; People v. Soldavini (1941) 45

Cal.App.2d 460, 463; People v. Phillips (1997) 59 Cal.App.4th 952,

956-58.) This instruction is included in this section for the

convenience of judges who wish to instruct on this point during voir

dire or before testimony begins.



AUTHORITY



Instructional Requirements » Pen. Code, §§ 1096, 1096a; People v.

Freeman (1994) 8 Cal.4th 450, 503-04; Sandoval v. California (1994) 511

U.S. 1, 16-17; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997.



{7}



COMMENTARY



This instruction is based directly on Penal Code section 1096. The

primary changes are a reordering of concepts and a definition of

reasonable doubt stated in the affirmative rather than in the negative.

The instruction also refers to the jury's duty to impartially compare

and consider all the evidence. (See Sandoval v. California (1994) 511

U.S. 1, 16-17.) The appellate courts have urged the trial courts to

exercise caution in modifying the language of section 1096 to avoid

error in defining reasonable doubt. (See People v. Freeman (1994) 8

Cal.4th 450, 503-04; People v. Garcia (1975) 54 Cal.App.3d 61.) The

instruction includes all the concepts contained in section 1096 and

substantially tracks the statutory language.



{8}



50. Evidence



______



1. It is your duty to determine what the facts are in this case. You

must use only the1 evidence that is presented in the courtroom to help

you make this determination. "Evidence" is the testimony of witnesses,

the exhibits admitted into evidence, and anything else I tell you to

consider as evidence.



2. Nothing that the attorneys say is evidence. In their opening

statements and final arguments, the attorneys will discuss the case,

but their remarks are not evidence. Their questions are also not

evidence. Only the witnesses' answers are evidence. The attorneys'

questions are significant only if they help you understand the

witnesses' answers. Do not assume that something is true just because

one of the attorneys asks a question that suggests it is.



3. During the trial, the attorneys may object to questions asked of a

witness. If an objection is proper, I will sustain it, the witness will

not be permitted to answer, and you must ignore the question. If the

witness does not answer, do not guess what the answer might have been

or why I ruled as I did. Attorneys may also move to strike testimony

from the record. If I grant the motion and strike the testimony, you

must ignore it.



4. You must disregard anything you see or hear when the court is not in

session, even if it is done or said by a party or witness.



[If it appears that circumstantial evidence will be substantially

relied on in the case, the trial court may wish to instruct on its

definition here; See instruction 300, Circumstantial Evidence.]



______



BENCH NOTES



Instructional Duty



There is no sua sponte duty to instruct on these evidentiary topics;

however, instruction on these principles has been approved. (See People

v. Barajas (1983) 145 Cal.App.3d 804, 809; People v. Samayoa (1997) 15

Cal.4th 795, 843-44; People v. Horton (1995) 11 Cal.4th 1068, 1121.)



AUTHORITY



Evidence Defined » Evid. Code, § 140.



Arguments Not Evidence » People v. Barajas (1983) 145 Cal.App.3d 804,

809.



{9}



Questions Not Evidence » People v. Samayoa (1997) 15 Cal.4th 795,

843-44.



Striking Testimony » People v. Horton (1995) 11 Cal.4th 1068, 1121.



{10}



Pretrial Instructions



60. Witnesses



______



1. You alone must judge the credibility or believability of the

witnesses. In deciding1 whether testimony is true and accurate, use

your common sense and experience. The testimony of each witness must be

judged by the same standard. You must set aside any bias or prejudice

you may have, including any based on the witness's race, sex, religion,

[or] national origin, [or ______] [insert any other potential

impermissible bias as appropriate]. You may believe all, none, or part

of any witness's testimony. Consider the testimony of each witness and

decide how much of it you believe.



2. In evaluating a witness's testimony, consider the following

questions:



a. How well could the witness see or hear [or otherwise sense] the

things about which the witness testified?



b. How well was the witness able to remember and describe what

happened?



c. What was the witness's behavior while testifying?



d. Did the witness understand the questions and answer them directly?



e. Did the witness have a reason to lie, such as a bias or prejudice, a

personal relationship with someone involved in the case, or a personal

interest in how the case is decided?



f. What was the witness's attitude about the case or about testifying?



g. Did the witness make a statement in the past that is consistent or

inconsistent with his or her testimony?



h. How reasonable is the testimony when you consider all the other

evidence in the case?



[i. Did other evidence prove or disprove any fact about which the

witness testified?]



[j. Did the witness admit to being untruthful?]



[k. What is the witness's character for truthfulness?]



[l. Has the witness been convicted of a felony?]



{11}



[m. Has the witness engaged in [other] conduct that reflects on his or

her believability?]



3. Do not automatically reject testimony just because of

inconsistencies or conflicts. Consider whether the differences are

important or not. People sometimes honestly forget things or make

mistakes about what they remember. Also, two people may witness the

same event yet see or hear it differently.



4. If you decide that a witness deliberately lied, consider the

importance of the lie. You may choose not to believe anything that

witness says. However, if you think the witness lied about some things

but told the truth about others, you may simply accept the part that

you think is true and ignore the rest.



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on factors relevant to a

witness's credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864,

883-84.) Although there is no sua sponte duty to instruct on

inconsistencies in testimony or a witness who lies, there is authority

approving instruction on both topics. (Dodds v. Stellar (1946) 77

Cal.App.2d 411, 426; People v. Murillo (1996) 47 Cal.App.4th 1104,

1107.)



Bracketed Factors



There is a split of authority on whether question "l" relating to a

witness's prior conviction for a felony, should be given sua sponte.

(Compare People v. Mayfield (1972) 23 Cal.App.3d 236, 245 [sua sponte

duty] with People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [no sua

sponte duty].) This point should not be included when a prior felony

conviction is an element of the charged crime. (People v. Dewberry

(1959) 51 Cal.2d 548, 554.)



Questions "i," "j," and "k" have been approved as appropriate factors

to be considered by the jury in evaluating the credibility of

witnesses. (Evid. Code, § 780(e), (i), and (k).) Because they are fact

specific they should only be given if supported by the evidence.



Question "m" refers to evidence of other misconduct introduced to

impeach a witness. (People v. Wheeler (1992) 4 Cal.4th 284.)



AUTHORITY



Factors » Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d

864, 883-84.



Inconsistencies » Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426.



Witness Who Lies » People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.



{12}



Series 100 - Post-trial Instructions



100. Duties of Judge and Jury



110. Reasonable Doubt



120. Evidence



130. Witnesses



190. Pre-Deliberation Instructions



Task Force Comments on this Series



Like the pretrial script, the posttrial script is designed as a

comprehensive way to instruct on general points required to be given at

the close of evidence. This material is organized in the categories

listed above and contains instructions that must be given sua sponte in

every case, in addition to generally applicable instructions that are

recommended in every case.



To facilitate an orderly presentation of ideas, the post trial script

was organized so that other case-specific instructions could be

inserted and given in a logical sequence.



{13}



100. Duties of Judge and Jury



______



1. Members of the jury, I will now instruct you on the law that applies

to this case. [I will give you a copy of the instructions to use in the

jury room.] [Each of you has a copy of these instructions so that you

can follow along as I read them to you.]



2. You must decide what the facts are. It is up to you, and only you,

to decide what happened, based only on the evidence that you have seen

and heard in this trial.



3. Do not let bias, sympathy, prejudice, or public opinion influence

your decision.



4. You must reach your verdict without any consideration of punishment.



5. You must follow the law as I explain it to you, even if you disagree

with it. If you believe that the attorneys' comments conflict with my

instructions, you must still follow my instructions.



6. Pay careful attention to all the instructions that I give you,

because they state the law that applies to this case. Consider all the

instructions together. If I repeat any instruction, this does not

necessarily mean that it is more important than any others.



7. After you have decided what the facts are, you may find that some

instructions do not apply. You must then follow the instructions that

do apply to the facts, in order to reach your verdict.



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct that the jurors are the

exclusive judges of the facts and that they are entitled to a copy of

the written instructions when they deliberate. (Pen. Code, §§ 1093(f),

1137.) The court should select the appropriate bracketed alternative

discussing written instructions. Although there is no sua sponte duty

to instruct on the other topics described in this instruction, there is

authority approving instruction on these topics.



{14}



AUTHORITY



Copies of Instructions » Pen. Code, §§ 1093(f), 1137.



Jury to Decide the Facts » Pen. Code, § 1127.



Judge Determines Law » Pen. Code, §§ 1124, 1126.



No Bias, Sympathy, or Prejudice » People v. Hawthorne (1992) 4 Cal.4th

43, 73.



Do Not Consider Punishment » People v. Nichols (1997) 54 Cal.App.4th

21, 24.



Attorney's Comments Are Not Evidence » People v. Stuart (1959) 168

Cal.App.2d 57, 60-61.



Consider All Instructions Together » People v. Osband (1996) 13 Cal.4th

622, 679; People v. Rivers (1993) 20 Cal.App.4th 1040, 1046; People v.

Shaw (1965) 237 Cal.App.2d 606, 623.



Follow Applicable Instructions » People v. Palmer (1946) 76 Cal.App.2d

679, 688.



{15}



110. Reasonable Doubt



______



1. The fact that a criminal charge has been filed against the defendant

is not1 evidence that the charge is true. You must not be biased

against the defendant just because (he/she) has been arrested and

charged with a crime.



2. A defendant in a criminal case is presumed to be innocent. This

presumption requires that the prosecutor prove each element of the

crime[s] [and special allegation[s]] beyond a reasonable doubt. Proof

beyond a reasonable doubt is proof that leaves you with an abiding

conviction that the charge is true. The evidence need not eliminate all

possible doubt because everything in life is open to some possible or

imaginary doubt.



3. In deciding whether the prosecution has proven its case beyond a

reasonable doubt, you must impartially compare and consider all the

evidence. Unless the evidence proves the defendant guilty beyond a

reasonable doubt, (he/she) is entitled to an acquittal and you must

find (him/her) not guilty.



[The court may give instructions on elements of the crime here.]



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on the presumption of

innocence and the state's burden of proof. (People v. Vann (1974) 12

Cal.3d 220, 225-27; People v. Soldavini (1941) 45 Cal.App.2d 460, 463;

People v. Phillips (1997) 59 Cal.App.4th 952, 956-58.)



AUTHORITY



Instructional Requirements » Pen. Code, §§ 1096, 1096a; People v.

Freeman (1994) 8 Cal.4th 450, 503-04; Sandoval v. California (1994) 511

U.S. 1, 16-1; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997.



COMMENTARY



This instruction is based directly on Penal Code section 1096. The

primary changes are a reordering of concepts and a definition of

reasonable doubt stated in the affirmative rather than in the negative.

The instruction also refers to the jury's duty to impartially compare

and consider all the evidence. (See Sandoval v. California (1994) 511

U.S. 1,



{16}



16-17.) The appellate courts have urged the trial courts to exercise

caution in modifying the language of section 1096 to avoid error in

defining reasonable doubt. (See People v. Freeman (1994) 8 Cal.4th 450,

503-04; People v. Garcia (1975) 54 Cal.App.3d 61.) The instruction

includes all the concepts contained in section 1096 and substantially

tracks the statutory language.



RELATED ISSUES



Reasonable Doubt Raised by Defense



A defendant is entitled, on request, to a nonargumentative instruction

that directs attention to the defense's theory of the case and relates

it to the state's burden of proof (People v. Sears (1970) 2 Cal.3d 180,

190 [error to deny requested instruction relating defense evidence to

the element of premeditation and deliberation].) Such an instruction is

sometimes called a pinpoint instruction. "What is pinpointed is not

specific evidence as such, but the theory of the defendant's case. It

is the specific evidence on which the theory of the defense `focuses'

which is related to reasonable doubt." (People v. Adrian (1982) 135

Cal.App.3d 335, 338 [court erred in refusing to give requested

instruction relating self-defense to burden of proof]; see also People

v. Granados (1957) 49 Cal.2d 490 [error to refuse instruction relating

reasonable doubt to commission of felony in felony-murder case]; People

v. Brown (1984) 152 Cal.App.3d 674, 677-78 [error to refuse instruction

relating reasonable doubt to identification].) (See instruction 415,

Eyewitness Identification for an example of a pinpoint instruction that

relates reasonable doubt to the defense theory of the case.)



{17}



120. Evidence



______



1. It is your duty to determine what the facts are in this case. You

must use only the1 evidence that was presented in this courtroom.

"Evidence" is the sworn testimony of witnesses, the exhibits admitted

into evidence, and anything else I told you to consider as evidence.



2. Nothing that the attorneys say is evidence. In their opening

statements and closing arguments, the attorneys discuss the case, but

their remarks are not evidence. Their questions are not evidence. Only

the witnesses' answers are evidence. The attorney's questions are

significant only if they helped you to understand the witnesses'

answers. Do not assume that something is true just because one of the

attorneys asked a question that suggested it was.



3. During the trial, the attorneys may have objected to questions or

moved to strike answers given by the witnesses. I ruled on the

objections according to the law. If I sustained an objection, you must

ignore the question. If the witness was not permitted to answer, do not

guess what the answer might have been or why I ruled as I did.

Attorneys may have moved to strike testimony. If I granted the motion

and struck the testimony, you must ignore it.



4. You must disregard anything you saw or heard when the court was not

in session, even if it was done or said by one of the parties or

witnesses.



[5. While we were hearing evidence, you were told that the prosecutor

and the defense agreed, or stipulated, to certain facts. This means

simply that they both accept those facts as true. Therefore, there is

no need for evidence on those points, and you must accept those facts

as true.]



[If circumstantial evidence has been substantially relied on in the

case, the trial court can instruct on its definition here; See

instruction 300, Circumstantial Evidence.]



[6. As you know, more than one defendant is on trial here. I am going

to remind you now which individuals are charged with which crimes.



______ has been charged with ______.



______ has been charged with ______.



You must decide the guilt or innocence of each defendant separately.

This means that you must separately consider the evidence as it applies

to each defendant.



{18}



You must also give separate consideration to each crime charged against

each defendant.



If you cannot reach a verdict on (all/both) of the defendants, or on

all of the charges against any one defendant, you must give your

verdict on any defendant or charge upon which you have unanimously

agreed.]



[7. As you know, the defendant has been charged with more than one

crime. You must decide defendant's guilt or innocent of each crime

separately. This means that you must separately consider the evidence

as it applies to each crime.



______



BENCH NOTES



Instructional Duty



There is no sua sponte duty to instruct on these evidentiary topics;

however, instruction on these topics has been approved. (People v.

Barajas (1983) 145 Cal.App.3d 804, 809; People v. Samayoa (1997) 15

Cal.4th 795, 843-44; People v. Horton (1995) 11 Cal.4th 1068, 1121.) If

stipulations were given, give the bracketed instruction in paragraph 5.

If more than one defendant is on trial, give the bracketed instruction

in paragraph 6. If defendant has been charged with more than one crime,

give the bracketed instruction in paragraph 7.



AUTHORITY



Evidence Defined » Evid. Code, § 140.



Stipulations » Palmer v. City of Long Beach (1948) 33 Cal.2d 134,

141-42.



Arguments Not Evidence » People v. Barajas (1983) 145 Cal.App.3d 804,

809.



Questions Not Evidence » People v. Samayoa (1997) 15 Cal.4th 795,

843-44.



Striking Testimony » People v. Horton (1995) 11 Cal.4th 1068, 1121.



RELATED ISSUES



Non-Testifying Courtroom Conduct



There is authority for an instruction informing the jury to disregard

defendant's in-court, but non-testifying behavior. (People v. Garcia

(1984) 160 Cal.App.3d 82, 90 [defendant was disruptive in court; court

instructed jurors they should not consider this behavior in deciding

guilt or innocence].) If the defendant has put his or her character in

issue or another basis for relevance exists, however, this instruction

should not be given. (People v. Garcia, supra, at p. 91, fn. 7; People

v. Foster (1988) 201 Cal.App.3d 20, 25.)



{19}



Post-Trial Instructions 130. Witnesses



______



1. You alone must judge the credibility or believability of the

witnesses. In deciding1 whether testimony is true and accurate, use

your common sense and experience. The testimony of each witness must be

judged by the same standard. You must set aside any bias or prejudice

you may have, including any based on the witness's race, sex, religion,

or national origin, [or ______] [insert any other impermissible bias as

appropriate]. You may believe all, none, or part of any witness's

testimony. Consider the testimony of each witness and decide how much

of it you believe.



2. In evaluating a witness's testimony, consider the following

questions:



a. How well could the witness see or hear [or otherwise sense] the

things about which the witness testified?



b. How well was the witness able to remember and describe what

happened?



c. What was the witness's behavior while testifying?



d. Did the witness understand the questions and answer them directly?



e. Did the witness have a reason to lie, such as a bias or prejudice, a

personal relationship with someone involved in the case, or a personal

interest in how the case is decided?



f. What was the witness's attitude about the case or about testifying?



g. Did the witness make a statement in the past that is consistent or

inconsistent with his or her testimony?



h. How reasonable is the testimony when you consider all the other

evidence in the case?



[i. Did other evidence prove or disprove any fact about which the

witness testified?]



[j. Did the witness admit to being untruthful?]



[k. What is the witness's character for truthfulness?]



[l. Has the witness been convicted of a felony?]



{20}



[m. Has the witness engaged in [other] conduct that reflects on his or

her believability?]



3. Do not automatically reject testimony just because of

inconsistencies or conflicts. Consider whether the differences are

important or not. People sometimes honestly forget things or make

mistakes about what they remember. Also, two people may witness the

same event yet see or hear it differently.



4. If you decide that a witness deliberately lied, consider the

importance of the lie. You may choose not to believe anything that

witness says. Or if you think the witness lied about some things but

told the truth about others, you may simply accept the part that you

think is true and ignore the rest.



[Instructions on the evaluation of certain types of witnesses and

evidence should be given here. The relevant instructions should be

selected from Series 300 and Series 400.]



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on factors relevant to a

witness's credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864,

883-84.) Although there is no sua sponte duty to instruct on

inconsistencies in testimony or a witness who lies, there is authority

approving instruction on both topics. (Dodds v. Stellar (1946) 77

Cal.App.2d 411, 426; People v. Murillo (1996) 47 Cal.App.4th 1104,

1107.)



Bracketed Factors



There is a split of authority on whether question "l," relating to a

witness's prior conviction for a felony, should be given sua sponte.

(Compare People v. Mayfield (1972) 23 Cal.App.3d 236, 245 [sua sponte

duty] with People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [no sua

sponte duty].) This point should not be included when a prior felony

conviction is an element of the charged crime. (People v. Dewberry

(1959) 51 Cal.2d 548, 554.)



Questions "i," "j," and "k" have been approved as appropriate factors

to be considered by the jury in evaluating the credibility of

witnesses. (Evid. Code, § 780(e), (i), and (k).) Because they are fact

specific they should only be given if supported by the evidence.



Question "m" refers to evidence of other misconduct introduced to

impeach a witness. (People v. Wheeler (1992) 4 Cal.4th 284.)



{21}



AUTHORITY



Factors » Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d

864, 883-84.



Inconsistencies » Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426.



Witness Who Lies » People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.



{22}



190. Pre-Deliberation Instructions



______



1. When you go to the jury room, the first thing you should do is choose 

a presiding juror. The presiding juror should see to it that your 

discussions are carried on in a businesslike way and that everyone has a 

fair chance to be heard.



2. It is your duty to talk with one another and to deliberate in the 

jury room. You should try to agree on a verdict if you can. Each of you 

must decide the case for yourself, but only after you have discussed the 

evidence with the other jurors. Do not hesitate to change your mind if 

you become convinced that you are wrong. But do not give up your honest 

beliefs just because other jurors disagree with you.



3. Please do not state your opinions too strongly at the beginning of

your11 deliberations or immediately announce how you plan to vote. Try

to keep an open mind so that you and your fellow jurors can openly

exchange your ideas about this case. Deliberations will be easier if

you treat your fellow jurors courteously.



4. During the trial, several items were received into evidence as

exhibits. [These exhibits will be sent into the jury room with you when

you begin to deliberate.] [You may examine whatever exhibits you think

will help you in your deliberations. If you wish to see any exhibits,

please request them in writing.]



5. If you need to communicate with me while you are deliberating, you

may send a note through the bailiff, signed by the presiding juror or

by one or more members of the jury. No member of the jury should try to

communicate with me except by a written note. I will consult with the

attorneys before I answer your questions, so it may take some time. You

should continue your deliberations while you wait for my answer. I will

answer any questions either in writing or orally here in open court. Do

not tell me or anyone else how the jurors stand on the question of

guilt, unless I ask you to do so.



6. Your verdict [on each count and any special finding(s)] must be

unanimous. This means that, to return a verdict, all twelve of you must

agree to it.



7. It is not my role to tell you what your verdict should be. [Do not

take anything I said or did during the trial as an indication of what I

think about the facts, the witnesses, or what your verdict should be.]



8. You will be given verdict forms. As soon as all twelve jurors have

agreed upon a verdict, the presiding juror must date and sign the

appropriate verdict form(s) and



{23}



notify the bailiff. [If you are able to reach a unanimous decision on

only one or only some of the (charges/or/defendants), fill in those

verdict forms only, and notify the bailiff.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct that the jury's verdict

must be unanimous. Although there is no sua sponte duty to instruct on

the other topics relating to deliberations, there is authority

approving such instructions. (See People v. Gainer (1977) 19 Cal.3d

835, 856; People v. Selby (1926) 198 Cal. 426, 439; People v. Hunt

(1915) 26 Cal.App. 514, 517.)



If the court automatically sends exhibits into the jury room, the court

should so instruct using the first bracketed sentence in paragraph 4.

If not, the court should alert the jury that they may request the

exhibits in writing and instruct using the second bracketed sentence in

paragraph 4.



If the court chooses to comment on the evidence, then the instruction

found in the last sentence of paragraph 7 should not be given. (See

Pen. Code, §§ 1127, 1093(f).)



AUTHORITY



Duty to Deliberate » People v. Gainer (1977) 19 Cal.3d 835, 856.



Keep an Open Mind » People v. Selby (1926) 198 Cal. 426, 439.



Exhibits » Pen. Code, § 1137.



Questions » Pen. Code, § 1138.



Unanimous Verdict » Cal. Const., art. I, § 16; People v. Howard (1930)

211 Cal. 322, 325; People v. Kelso (1945) 25 Cal.2d 848, 853-54; People

v. Collins (1976) 17 Cal.3d 687, 692.



Judge's Conduct as Indication of Verdict » People v. Hunt (1915) 26

Cal.App. 514, 517.



Verdict Forms » Pen. Code, § 1140.



{24}



Series 300 - Evidence



300. Circumstantial Evidence



306. All Available Evidence



307. Proof Need Not Show Actual Date



315. Consciousness of Guilt: False Statements



316. Consciousness of Guilt: Fabrication and Suppression of Evidence



318. Defendant's Flight



330. Limited Purpose Evidence in General



332. Multiple Defendants: Limited Admissibility of Evidence



333. Multiple Defendants: Limited Admissibility of Defendant's

Statement



338. Other Perpetrator



339. Consent: Prior Sexual Intercourse



340. Miranda-Defective Statements



341. Adoptive Admissions



348. Consciousness of Guilt: Failure to Deny or Explain Evidence



{25}



300. Circumstantial Evidence



______



Facts may be proven in two ways: directly or indirectly by

circumstantial evidence. Direct evidence proves a fact by itself. If,

for example, witnesses see something, then come to court and testify,

their testimony is direct evidence of what they saw. Circumstantial

evidence, on the other hand, proves a fact based on a logical

conclusion. Here is an example of how circumstantial evidence works: a

party proves Fact A, then argues that because Fact A is true, logically

you should conclude that Fact B is also true. Both direct and

circumstantial evidence are acceptable. Neither is necessarily more or

less reliable than the other.



You cannot convict (a/the) defendant based on circumstantial evidence

unless you examine all reasonable conclusions that can be drawn from

that evidence. If there is only one reasonable conclusion, you must

accept it. On the other hand, if two or more reasonable conclusions can

be drawn and one points to innocence, you must accept the one that

points to innocence. In other words, you may not decide that the

defendant is guilty based on circumstantial evidence unless (his/her)

guilt is the only reasonable conclusion that can be drawn from the

circumstantial evidence.



Any fact that is a link in a chain of circumstantial evidence essential

to the prosecutor's case must be proved beyond a reasonable doubt. If

any such fact has not been proved beyond a reasonable doubt, you must

not find the defendant guilty of the crime based on that circumstantial

evidence [or find true a special allegation based on that

circumstantial evidence].



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on how to evaluate

circumstantial evidence if the prosecution substantially relies on

circumstantial evidence to establish any element of the case. (People

v. Yrigoyen (1955) 45 Cal.2d 46, 49 [duty exists where circumstantial

evidence relied on to prove any element, including intent]; see People

v. Boyd (1987) 43 Cal.3d 333, 351-52; People v. Heishman (1988) 45

Cal.3d 147, 167; CJER Mandatory Criminal Jury Instructions Handbook

(1998) §§ 2.4, 2.90, pp. 16, 75; see also People v. Butler (1980) 104

Cal.App.3d 868, 876-78 [discussing whether circumstantial evidence was

substantially relied on or merely corroborative and finding it only

corroborative].)



{26}



Related Instructions



If intent is the only element proved by circumstantial evidence, then

give instruction 301, Circumstantial Evidence: Intent. (People v.

Marshall (1996) 13 Cal.4th 799, 849.)



AUTHORITY



Direct Evidence, Defined » Evid. Code, § 410.



Inference, Defined » Evid. Code, § 600(b).



Instructional Requirements:



* Difference Between Direct and Circumstantial Evidence » People v. Lim

Foon (1915) 29 Cal.App. 270, 274 [no sua sponte duty to instruct, but

court approves definition].



* Between Two Reasonable Interpretations of Circumstantial Evidence,

Accept the One That Points to Innocence » People v. Merkouris (1956) 46

Cal.2d 540, 560-62 [error to refuse requested instruction on this

point]; People v. Johnson (1958) 163 Cal.App.2d 58, 62 [sua sponte duty

to instruct].



* Circumstantial Evidence Must Be Entirely Consistent With a Theory of

Guilt and Inconsistent With Any Other Rational Conclusion » People v.

Bender (1945) 27 Cal.2d 164, 175 [sua sponte duty to instruct]; People

v. Yrigoyen (1955) 45 Cal.2d 46, 49 [same].



* Each Fact in a Chain of Circumstantial Evidence Must Be Proved

» People v. Watson (1956) 46 Cal.2d 818, 831 [error to refuse requested

instruction on this point].



See generally People v. Boyd (1987) 43 Cal.3d 333, 351-52 [sua sponte

duty to instruct on above principles when prosecutor's case rests

substantially on circumstantial evidence].



RELATED ISSUES



Extrajudicial Admissions



Extrajudicial admissions, although hearsay, are not the type of

indirect evidence requiring instruction on circumstantial evidence.

(People v. Wiley (1976) 18 Cal.3d 162, 174-75.)



Corroborating Evidence



An instruction on evaluating circumstantial evidence is not required

when the evidence is only incidental to and corroborative of direct

evidence. (People v. Shea (1995) 39 Cal.App.4th 1257, 1270-71; People

v. Jerman (1946) 29 Cal.2d 189, 197; see also People v. Wright (1990)

52 Cal.3d 367, 406 [no instruction required where circumstantial

evidence only corroborates direct evidence]; People v. Williams (1984)

162 Cal.App.3d 869, 874-76 [no duty to instruct when circumstantial

evidence used to corroborate accomplice's testimony; although

corroborating evidence needed to substantiate direct



{27}



evidence given by accomplice, it was not type of evidence requiring

circumstantial evidence instruction].)



{28}



306. All Available Evidence



Neither side is required to call all witnesses who may have information

about the case or to produce all physical evidence that might be

relevant.



BENCH NOTES



Instructional Duty



No authority imposes a duty to give an instruction on all available

evidence sua sponte; however, it should be given on request. (See

generally Pen. Code, §§ 1093(f), 1127; People v. Pitts (1990) 223

Cal.App.3d 606, 880, 881.)



AUTHORITY



Instructional Requirements » People v. Simms (1970) 10 Cal.App.3d 299,

313.



RELATED ISSUES



Willful Suppression of or Failure to Obtain Evidence



Willful suppression of evidence by the government constitutes a denial

of a fair trial and of due process. (People v. Noisey (1968) 265

Cal.App.2d 543, 549-50.) Likewise, willful failure by investigating

officers to obtain evidence that would clear a defendant would amount

to a denial of due process of law. (Ibid.) However, failure to look for

evidence is quite different from suppressing known evidence and "the

mere fact that investigating officers did not pursue every possible

means of investigation of crime does not, standing alone, constitute

denial of due process or suppression of evidence." (Ibid.; see also

People v. Tuthill (1947) 31 Cal.2d 92, 97-98 ["[t]here is no compulsion

on the prosecution to call any particular witness or to make any

particular tests so long as there is fairly presented to the court the

material evidence bearing upon the charge for which the defendant is on

trial."].)



{29}



307. Proof Need Not Show Actual Date



The (information/indictment) in this case states that the crime

occurred on [or about] ______ [insert alleged date]. The prosecutor is

not required to prove that the crime took place exactly on that day but

only that it happened on or reasonably close to that day.



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction that the

prosecutor does not have to prove the exact time and day the crime was

committed. This instruction should not be given (1) when the evidence

demonstrates that the offense was committed at a specific time and

place and the defendant has presented a defense of alibi or lack of

opportunity and (2) when two similar offenses are charged in separate

counts. (People v. Jennings (1991) 53 Cal.3d 334, 358-59; People v.

Jones (1973) 9 Cal.3d 546, 557, overruled on different grounds by

Hernandez v. Superior Court (1989) 49 Cal.3d 713; People v. Barney

(1983) 143 Cal.App.3d 490, 497-98; People v. Gavin (1971) 21 Cal.App.3d

408, 415-16; People v. Deletto (1983) 147 Cal.App.3d 458, 474-75.)



AUTHORITY



Instructional Requirements » Pen. Code, § 955; People v. Jennings

(1991) 53 Cal.3d 334, 358-59; People v. Jones (1973) 9 Cal.3d 546, 557;

People v. Barney (1983) 143 Cal.App.3d 490, 497-98; People v. Gavin

(1971) 21 Cal.App.3d 408, 415-16; People v. Deletto (1983) 147

Cal.App.3d 458, 474-75.



{30}



315. Consciousness of Guilt: False Statements



If [the] defendant [______ [insert name of defendant]] made a false or

misleading statement relating to the charged crime, knowing it was

false or intending to mislead, that conduct may show (he/she) was aware

of (his/her) guilt of that crime. If you conclude that [the] defendant

[______ [insert name of defendant]] made such a statement knowing it

was false or intending to mislead, you may consider it [only] in

determining (his/her) guilt. [You may not consider it in deciding any

other defendant's guilt.]



Evidence that the defendant made such a statement cannot prove guilt by

itself. If you conclude the defendant made the statement, it is up to

you to decide its meaning and importance.



BENCH NOTES



Instructional Duty



People v. Atwood (1963) 223 Cal.App.2d 316, 333-34 held that the court

had a sua sponte duty, under the circumstances of that case, to

instruct on consciousness of guilt when there was evidence that the

defendant intentionally made a false statement from which such an

inference could be drawn. (See also People v. Edwards (1992) 8

Cal.App.4th 1092, 1103-04 [approving instruction on this point]; 1998

CJER Mandatory Criminal Jury Instructions Handbook, § 2.92, p. 76.)



This instruction should not be given unless it can be inferred that the

defendant made the false statement for self-protection rather than to

protect someone else. (People v. Rankin (1992) 9 Cal.App.4th 430,

[error to instruct on false statements and consciousness of guilt where

defendant lied to protect an accomplice]; see also People v. Blakeslee

(1969) 2 Cal.App.3d 831, 839.)



AUTHORITY



Instructional Requirements » People v. Atwood (1963) 223 Cal.App.2d

316, 333.



{31}



COMMENTARY



The word "willfully" was not included in the description of the making

of the false statement. Although one court suggested that the jury be

explicitly instructed that the defendant must "willfully" make the

false statement (People v. Louis (1984) 159 Cal.App.3d 156, 161-62),

the California Supreme Court subsequently held that such language is

not required. (People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9.)



RELATED ISSUES



Evidence The false nature of the defendant's statement may be shown by

inconsistencies in the defendant's own testimony, his or her pretrial

statements, or by any other prosecution evidence. (People v. Kimble

(1988) 44 Cal.3d 480, 498 [overruling line of cases that required

falsity to be demonstrated only by defendant's own testimony or

statements]; accord People v. Edwards (1992) 8 Cal.App.4th 1092, 1103;

People v. Williams (1995) 33 Cal.App.4th 467, 478-79.)



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316. Consciousness of Guilt: Fabrication and Suppression of Evidence



Alternative A - suppression



If the defendant tried to hide evidence or discourage someone from

testifying against (him/her), that conduct may show that (he/she) was

aware of (his/her) guilt. Evidence of such an attempt cannot prove

guilt by itself. If you conclude the defendant made such an attempt, it

is up to you to decide its meaning and importance.



Alternative B - fabrication



If the defendant tried to create false evidence or obtain false

testimony, that conduct may show that (he/she) was aware of (his/her)

guilt. Evidence of such an attempt cannot prove guilt by itself. If you

conclude the defendant made such an attempt, it is up to you to decide

its meaning and importance.



Alternative C - fabrication or suppression by a third party



If someone other than the defendant tried to create false evidence,

provide false testimony, or conceal or destroy evidence, that conduct

may show the defendant was aware of (his/her) guilt, but only if the

defendant was present and knew about or authorized the other person's

actions. Evidence of such conduct cannot prove guilt by itself. If you

conclude such an attempt was made, it is up to you to decide the

meaning and importance of this evidence.



BENCH NOTES



Instructional Duty



No authority imposes a duty to give this instruction sua sponte.

However, People v. Atwood (1963) 223 Cal.App.2d 316, held that the

court had a sua sponte duty, under the circumstances of that case, to

instruct on consciousness of guilt based on defendant's false

statements because they pertained to the vital question of whether

defendant admitted his guilt. (Id. at pp. 333-34.)



AUTHORITY



Instructional Requirements » People v. Atwood (1963) 223 Cal.App.2d 316



Suppression of Evidence » Evid. Code, § 413.



Fabrication of Evidence » People v. Jackson (1996) 13 Cal.4th 1164,

1222; People v. Rodrigues (1994) 8 Cal.4th 1060, 1138.



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Fabrication or Suppression of Evidence by Third Party » Evid. Code, §

413; People v. Jackson (1996) 13 Cal.4th 1164, 1222; People v.

Rodrigues (1994) 8 Cal.4th 1060, 1138.



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318. Defendant's Flight



If defendant fled [or tried to flee] (immediately after the crime was

committed/after (he/she) was accused of committing the crime) that

conduct may show that (he/she) was aware of (his/her) guilt. Evidence

that the defendant fled [or tried to flee] cannot prove guilt by

itself. If you conclude that the defendant fled [or tried to flee], it

is up to you to decide the meaning and importance of that conduct.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on flight whenever the

prosecution relies on evidence of flight. (People v. Williams (1960)

179 Cal.App.2d 487, 491.) There is, however, no reciprocal duty to

instruct on the significance of the absence of flight, even on request.

(People v. Williams (1997) 55 Cal.App.4th 648, 651.)



If the defendant's flight did not occur immediately after the crime was

committed, the trial court should give the second option in the

paranthetical. (People v. Carrera (1989) 49 Cal.3d 291, 313 [flight

from county jail]; People v. Farley (1996) 45 Cal.App.4th 1697, 1712

[where flight was from custody, the instructional language "immediately

after the commission of a crime" was irrelevant but harmless].)



AUTHORITY



Instructional Requirements » Pen. Code, § 1127c; People v. Williams

(1960) 179 Cal.App.2d 487, 491; People v. Bradford (1997) 14 Cal.4th

1005, 1054-55.



RELATED ISSUES



Flight, Meaning



Flight does not require a person to physically run from the scene or

make an escape. What is required is acting with the purpose of avoiding

observation or arrest. (People v. Bradford (1997) 14 Cal.4th 1005, 1055

[defendant fled when he left victim's apartment after killing her, told

the assistant manager, "I really got to get the hell out of here,"

returned to his apartment, packed his belongings, asked a former

girlfriend who lived out of the area if he could stay with her, and

repeatedly pleaded with his roommate to drive him out of town].)



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330. Limited Purpose Evidence in General



During the trial, certain evidence was admitted for a limited purpose.

You may consider that evidence only for that purpose and no other.



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an admonition limiting

consideration of evidence; however, it must be given on request. (Evid.

Code, § 355; People v. Simms (1970) 10 Cal.App.3d 299, 311.)



AUTHORITY



Instructional Requirements » Evid. Code, § 355; People v. Simms (1970)

10 Cal.App.3d 299, 311.



RELATED ISSUES



Timing of Instruction



The court has discretion to give limiting instructions at the time the

evidence is admitted or at the close of evidence. (People v. Dennis

(1998) 17 Cal.4th 468, 533-34 [giving limiting instruction regarding

use of defendant's statements to psychiatrist at close of all evidence

did not result in error].)



{36}



332. Multiple Defendants: Limited Admissibility of Evidence



I instructed you during the trial that certain evidence was admissible

only against [a] certain defendant[s]. You must not consider that

evidence against (any/the) other defendant[s].



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction limiting

evidence to one defendant; however, it must be given on request. (Evid.

Code, § 355; People v. Miranda (1987) 44 Cal.3d 57, 83 disapproved of

on other grounds in People v. Marshall (1990) 50 Cal.3d 907.)



AUTHORITY



Instructional Requirements » Evid. Code, § 355.



RELATED ISSUES



See generally, the related issues section under instruction 330,

Limited Purpose Evidence in General.



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333. Multiple Defendants: Limited Admissibility of Defendant's

Statement



______



You heard evidence that defendant ______ [insert defendant's name] made

a statement (out of court/before trial). You may consider that evidence

only against (him/her), not against (any/the) other defendant[s].



______



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on defendant's

statements; however, it must be given on request. (Evid. Code, § 355;

People v. Simms (1970) 10 Cal.App.3d 299, 311.)



In most cases, the defendant will make the statement out of court, and

the court should therefore instruct using that language. If the

statement was made in a previous proceeding, the court should instruct

that it was made "before trial." (See People v. Perry (1972) 7 Cal.3d

756, 787-88.)



If the statement was made in the course of a conspiracy, it may be

admissible against all conspirators to prove the conspiracy. (See 1

Witkin, Cal. Evidence (3d ed. 1986) Statement Made During Conspiracy, §

680, p. 664.)



AUTHORITY



Instructional Requirements » Evid. Code, § 355.



RELATED ISSUES



See generally, the related issues section under instruction 330,

Limited Purpose Evidence in General.



{38}



338. Other Perpetrator



The evidence shows that (another person/other persons) may have been

involved in the commission of the crime[s] charged against the

defendant. Your sole duty is to decide if the defendant on trial here

committed the crime[s] charged. There may be many reasons why someone

who appears to have been involved might not be a codefendant in this

particular trial. You must not speculate about whether (that other

person has/those other persons have) been or will be prosecuted.



[This instruction does not apply to the testimony of ______ [insert

names of testifying coparticipants].]



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on

co-participants; however, it must be given on request. (See People v.

Sanders (1990) 221 Cal.App.3d 350, 359.)



If other alleged participants in the crime are testifying, this

instruction should not be given or the bracketed portion should be

given exempting the testimony of those witnesses. (People v. Carrera

(1989) 49 Cal.3d 291, 312; People v. Sully (1991) 53 Cal.3d 1195, 1218;

People v. Williams (1997) 16 Cal.4th 153, 226-27.)



AUTHORITY



Instructional Requirements » People v. Farmer (1989) 47 Cal.3d 888,

918-19; People v. Sanders (1990) 221 Cal.App.3d 350, 359.



RELATED ISSUES



Jury Can Still Consider Evidence That Someone Else Was the Perpetrator



"The instruction does not tell the jury it cannot consider evidence

that someone else was the perpetrator. It merely says the jury is not

to speculate on whether someone else might or might not be prosecuted."

(People v. Farmer (1989) 47 Cal.3d 888, 918-19.)



{39}



339. Consent: Prior Sexual Intercourse



You have heard evidence that the alleged victim had consensual sexual

intercourse with the defendant before the act that is charged in this

case. You may consider this evidence only to help you decide (whether

the alleged victim consented to the charged act[s]/[and] whether the

defendant reasonably and in good faith believed that the alleged victim

consented to the charged act(s)). You may not consider this evidence

for any other purpose.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this limiting admonition if the

defendant is charged with rape or unlawful sexual intercourse or an

attempt or assault with intent to commit either crime and evidence of

prior sexual intercourse with the alleged victim has been admitted.

(Pen. Code, § 1127d.)



AUTHORITY



Instructional Requirements4Pen. Code, § 1127d.



RELATED ISSUES



Admissibility of Sexual Conduct of Complaining Witness Evidence Code

section 782 sets out the procedure for admitting evidence of the sexual

conduct of the complaining witness.



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340. Miranda-Defective Statements



You have heard evidence that the defendant made a statement to a police

officer before trial. [I am now referring to the statement allegedly

given to ______ [insert name of officer or indicate time, place, or

other information to identify the statement].]



If you conclude that the defendant made this statement, you may

consider it only to help you decide whether to believe the defendant's

trial testimony. You may not consider the statement for any other

purpose.



[You should view an unrecorded oral statement cautiously.]



BENCH NOTES



Instructional Duty



There is a split of authority over whether the court has a sua sponte

duty to give an instruction on Miranda-defective statements. (Compare

People v. Duncan (1988) 204 Cal.App.3d 613, 619 with People v. Wyatt

(1989) 215 Cal.App.3d 255, 258; People v. Baker (1990) 220 Cal.App.3d

574, cert. den. 498 U.S. 497.) The Center for Judicial Education and

Research (CJER) notes the split and includes a cautionary instruction

on this principle among those instructions to be given sua sponte .

(1998 CJER Mandatory Criminal Jury Instructions Handbook, § 2.216 at p.

96.) Those cases that do not impose a sua sponte duty recognize a duty

to instruct on request. (People v. Wyatt, supra; People v. Torrez

(1995) 31 Cal.App.4th 1084, 1090.) The committee suggests that the

better practice is for the court to instruct sua sponte unless the

defendant objects.



If the defendant made more than one statement, but not all of the

statements are subject to the limiting admonition, specify the relevant

statement or statements using the bracketed text in the first

paragraph.



AUTHORITY



Instructional Requirements » People v. May (1988) 44 Cal.3d 309; Harris

v. New York (1971) 401 U.S. 222.



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341. Adoptive Admissions



______



If you conclude that someone made a statement outside of court that

(accused the defendant of the crime [or] tended to connect the

defendant with the commission of the crime) and the defendant did not

deny it, you must decide whether each of the following is true:



1. The statement was directed to the defendant or made in (his/her)

presence.



2. The defendant heard and understood the statement.



3. The defendant would, under all the circumstances, naturally have

denied the statement if (he/she) thought it was not true.



AND



4. The defendant could have denied it but did not.



If you decide that all of these requirements have been met, you may

conclude that the defendant admitted the statement was true.



If you decide that any of these requirements has not been met, you must

not consider either the statement or the defendant's response for any

purpose.



[You must not consider this evidence in determining the guilt of

(the/any) other defendant[s].]



______



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on the foundational

requirements for adoptive admissions if such evidence is admitted.

(People v. Vindiola (1979) 96 Cal.App.3d 370, 381, citing People v.

Atwood (1963) 223 Cal.App.2d 316, 332-34; see also People v. Humphries

(1986) 185 Cal.App.3d 1315, 1336.)



If the court instructs on adoptive admissions, the court also has a sua

sponte duty to instruct on corpus delicti. (See instruction __, Corpus

Delicti; see also People v. Jennings (1991) 53 Cal.3d 334, 364

[discussing corpus delicti rule in the case of an affirmative

admission; by analogy the rule also should apply to adoptive

admissions].)



{42}



The limiting admonition in the last sentence of the instruction must be

given on request when other co-defendants are on trial. (People v.

Richards (1976) 17 Cal.3d 614, 618-19; see generally Evid. Code, §

355.)



Do not give this instruction if the defendant's failure to reply was

based on his or her invocation of the right to remain silent. (Griffin

v. California (1965) 380 U.S. 609; People v. Cockrell (1965) 63 Cal.2d

659.)



AUTHORITY



Instructional Requirements » People v. Atwood (1963) 223 Cal.App.2d

316, 332-33; People v. Vindiola (1979) 96 Cal.App.3d 370; People v.

Humphries (1986) 185 Cal.App.3d 1315, 1336.



RELATED ISSUES



Defendant Intoxicated When Admission Made



"Declarations of a prisoner under the influence of intoxicants are not

rendered inadmissible by reason of his drunkenness. That condition

would go only to the weight of the evidence." (People v. MacCagnan

(1954) 129 Cal.App.2d 100, 112 [instruction on adoptive admission

proper despite defendant's intoxication when questioned concerning

ownership of narcotic; jury may consider evasiveness of the answer

since declarations under influence of intoxicants are not rendered

inadmissible by reason of drunkenness].)



{43}



348. Failure to Explain or Deny Adverse Testimony



If the defendant failed in (his/her) testimony to explain or deny

evidence against (him/her), and if (he/she) could reasonably be

expected to have done so based on what (he/she) knew, you may consider

(his/her) failure to explain or deny in evaluating that evidence. Any

such failure is not enough by itself to establish an inference of

guilt. The prosecutor must still prove each element of the case beyond

a reasonable doubt.



If you conclude the defendant did fail to explain or deny, it is up to

you to decide the meaning and importance of that failure.



BENCH NOTES



Instructional Duty



No authority imposes a duty to give this instruction sua sponte. This

instruction should only be given when the defendant testifies and the

privilege against self-incrimination has not been successfully invoked.

(People v. Mask (1986) 188 Cal.App.3d 450, 455; People v. Haynes (1983)

148 Cal.App.3d 1117, 1118.) Before an instruction on this principle may

be given, the trial court must ascertain (1) if a question was asked

that called for an explanation or denial of incriminating evidence, (2)

if the defendant knew the facts necessary to answer the question, or if

some circumstance precluded the defendant from knowing such facts, and

(3) if the defendant failed to deny or explain the incriminating

evidence when answering the question. (People v. Saddler (1979) 24

Cal.3d 671, 682-83 [instruction erroneously given because there was no

evidence that defendant failed to deny or explain incriminating

evidence]; People v. Marsh (1985) 175 Cal.App.3d 987, 994 [same];

People v. De Larco (1983) 142 Cal.App.3d 294, 309 [same]; see also

People v. Marks (1988) 45 Cal.3d 1335, 1346.) Contradiction of the

state's evidence is not by itself a failure to deny or explain. (People

v. Marks, supra, 45 Cal.3d at p. 1346; People v. Peters (1982) 128

Cal.App.3d 75, 86.) Failure to recall is not an appropriate basis for

this instruction. (People v. De Larco, supra, 142 Cal.App.3d at p.

309.)



One court has cautioned against giving this instruction unless both

parties agree and there is a significant omission on the part of the

defendant to explain or deny adverse evidence. (People v. Haynes,

supra, 148 Cal.App.3d at pp. 1117-18.)



AUTHORITY



Instructional Requirements » Evid. Code, § 413.



{44}



Cautionary Language » People v. Saddler (1979) 24 Cal.3d 671, 683.



RELATED ISSUES



Bizarre or Implausible Answers



If the defendant's denial or explanation is bizarre or implausible,

several courts have held that the question whether his or her claim of

ignorance is reasonable should be given to the jury with an instruction

regarding adverse inferences. (People v. Mask (1986) 188 Cal.App.3d

450, 455; People v. Roehler (1985) 167 Cal.App.3d 353, 392-93.) But see

People v. Kondor: "[T]he test for giving the instruction [on failure to

deny or explain] is not whether the defendant's testimony is

believable. [The instruction] is unwarranted when a defendant explains

or denies matters within his or her knowledge, no matter how improbable

that explanation may appear." (People v. Kondor (1988) 200 Cal.App.3d

52, 57.)



Facts Beyond the Scope of Examination



If the defendant has limited his or her testimony to a specific factual

issue, it is error for the prosecutor to comment, or the trial court to

instruct, on his or her failure to explain or deny other evidence

against him or her that is beyond the scope of this testimony. (People

v. Tealer (1975) 48 Cal.App.3d 598, 604-07.)



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{45}



Series 400 - Witnesses



400. Single Witness' Testimony



405. Character of Defendant



406. Cross Examination of Character Witness



408. Exercise of Privilege by Witness



415. Eyewitness Identification



420. Testimony of Child 10 Years or Younger



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{46}



400. Single Witness's Testimony



[Except for the testimony of ______ [insert witness's name], which

requires corroborating evidence or extra proof,] (the/The) testimony of

a single witness can prove any fact in the case. Before relying on the

testimony of a single witness to prove a fact, you should carefully

review any other evidence on that point.



BENCH NOTES Instructional Duty The court has a sua sponte duty to give

this instruction on a single witness's testimony in every case where

corroboration is not required. (People v. Rincon-Pineda (1975) 14

Cal.3d 864, 884-85.) Insert the bracketed language if the testimony of

an accomplice or other witness requires corroboration. (People v.

Chavez (1985) 39 Cal.3d 823, 831-32.)



The following constitutional provisions and statutes require evidence

that corroborates a witness's testimony: Cal. Const., art. I, § 20

[treason]; Pen. Code, §§ 1111 [accomplice testimony]; 653f

[solicitation of a felony]; 118 [perjury]; 1108 [abortion and seduction

of a minor]; 1110 [obtaining property by false pretenses].



AUTHORITY



Instructional Requirements » Evid. Code, § 411; People v. Rincon-Pineda

(1975) 14 Cal.3d 864, 885.



Corroboration Required » People v. Chavez (1985) 39 Cal.3d 823, 831-32.



RELATED ISSUES



Uncorroborated Testimony of Defendant



The cautionary admonition regarding a single witness's testimony

applies with equal force to uncorroborated testimony by a defendant.

(People v. Turner (1990) 50 Cal.3d 668, 696, fn. 14.)



Uncorroborated Testimony in Sex Offense Cases



In a prosecution for forcible rape, an instruction that the testimony

of a single witness is sufficient may be given in conjunction with an

instruction that there is no legal corroboration requirement in a sex

offense case. Both instructions correctly state the law and because

each focuses on a different legal point, there is no implication that

the victim's testimony is more credible than the defendant's testimony.

(People v. Gammage



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{47}



(1992) 2 Cal.4th 693, 701-02 [resolving split of authority on whether

the two instructions can be given together].)



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{48}



405. Character of Defendant



You have heard character testimony that the defendant (is a ______

[insert character trait] person/or/has a good reputation for ______

[insert character trait] in the community where (he/she) lives or

works).



You may take that testimony into consideration along with all the other

evidence in deciding whether the prosecutor has proven the case beyond

a reasonable doubt.



Evidence of the defendant's character for ______ [insert character

trait] alone may create a reasonable doubt. If you decide such

character evidence is true, it is up to you to determine its meaning

and importance.



[If the defendant's character for certain traits has not been discussed

among those who know (him/her), you may assume that (his/her) character

for those traits is good.]



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on defendant's

character; however, it must be given on request. (People v. Bell (1875)

49 Cal. 485, 489-90 [jury should be instructed that evidence of good

reputation should be weighed as any other fact established and may be

sufficient to create reasonable doubt of guilt]; People v. Jones (1954)

42 Cal.2d 219, 222 [character evidence may be sufficient to create

reasonable doubt of guilt]; People v. Wilson (1913) 23 Cal.App. 513,

523-24 [court erred in failing to give requested instruction or any

instruction on character evidence].)



AUTHORITY



Instructional Requirements » People v. Bell (1875) 49 Cal. 485, 489-90;

People v. Wilson (1913) 23 Cal.App. 513, 523-24; People v. Jones (1954)

42 Cal.2d 219, 222.



Admissibility » Evid. Code, §§ 1100-1102.



RELATED ISSUES



No Discussion of Character Is Evidence of Good Character



The fact that the defendant's character or reputation has not been

discussed or questioned among those who know him or her is evidence of

the defendant's good character and



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{49}



reputation. (People v. Castillo (1935) 5 Cal.App.2d 194, 198.) However,

the defendant must have resided in the community for a sufficient

period of time and become acquainted with the community in order for

his or her character to have become known and for some sort of

reputation to have been established. (See Evid. Code, § 1324

[reputation may be shown in the community where defendant resides and

in a group with which he or she habitually associates]; see also People

v. Pauli (1922) 58 Cal.App. 594, 596 [witness's testimony about

defendant's good reputation in community was inappropriate where

defendant was a stranger in the community, working for a single

employer for a few months, going about little, and forming no

associations].)



Business Community



The community for purposes of reputation evidence may also be the

defendant's business community and associates. (People v. Cobb (1955)

45 Cal.2d 158, 163.)



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{50}



406. Cross-Examination of Character Witness



The prosecutor was allowed to ask defendant's character witness(es) if

(he/she/they) had heard that the defendant had engaged in certain

conduct. These "have you heard" questions and their answers are not

evidence that the defendant engaged in any such conduct. You may

consider these questions and answers only to evaluate a character

witness's testimony.



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on cross

examination of character witnesses, however it must be given on

request. (People v. Hempstead (1983) 148 Cal.App.3d 949, 954 [when

cross-examination of character witness is permitted, a limiting

admonition should be given] Evid. Code, § 355.)



AUTHORITY



Instructional Requirements » People v. Hempstead (1983) 148 Cal.App.3d

949, 954; People v. Eli (1967) 66 Cal.2d 63, 79.



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{51}



408. Exercise of Privilege by Witness



A witness may refuse to answer questions that call for privileged

information. Under the law, ______ [insert name of witness] was

justified in refusing to answer certain questions. You must not

consider in any way (his/her) refusal[s] to answer, and you must not

guess what (his/her) answer[s] would have been.



______



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on the exercise

of privilege by witnesses; however, it must be given on request. (Evid.

Code, § 913 subd. (b); see also People v. Mincey (1992) 2 Cal.4th 408,

440-441.)



Related Instructions



Defendant Has No Obligation to Testify, __.



AUTHORITY



Instructional Requirements » Evid. Code, § 913(b); People v. Mincey

(1992) 2 Cal.4th 408, 440-41.



{52}



415. Eyewitness Identification



______



You have heard eyewitness identification testimony. As with any other

witness, you must decide whether an eyewitness gave truthful and

accurate testimony.



In evaluating identification testimony, consider the following

questions:



a. Did the witness know the defendant before the event?



b. How well could the witness see the perpetrator?



c. What were the circumstances affecting the witness's ability to

observe, such as lighting, weather conditions, obstructions, distance,

[and] duration of observation[, and ______ [insert any other relevant

circumstances]]?



d. How closely was the witness paying attention?



e. Was the witness under stress when he or she made the observation?



f. Did the witness give a description and how does that description

compare to the defendant?



g. How much time passed between the event and the time[s] when the

witness identified the defendant?



h. Was the witness asked to pick the perpetrator out of a group?



i. Did the witness ever fail to identify the defendant?



j. Did the witness ever change his or her mind about the

identification?



k. How certain was the witness when he or she made an identification?



l. Are the witness and the defendant of different races?



m. Were there any other circumstances affecting the witness's ability

to make an accurate identification?



[n. Was the witness able to identify other participants in the crime?]



{53}



[o. Was the witness able to identify the defendant in a photographic or

physical lineup?]



[p. ______ [insert other relevant factors raised by the evidence]]



If you are not convinced beyond a reasonable doubt, based on all the

evidence, that it was the defendant who committed the crime, you must

find (him/her) not guilty.



______



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on eye-witness

testimony. An instruction relating eyewitness identification to

reasonable doubt, including any relevant "pinpoint" factors, must be

given by the trial court on request "[w]hen an eyewitness

identification of the defendant is a key element of the prosecution's

case but is not substantially corroborated by evidence giving it

independent reliability." (People v. Wright (1988) 45 Cal.3d 1126,

1143-44; People v. Fudge (1994) 7 Cal.4th 1075, 1110; People v. Palmer

(1984) 154 Cal.App.3d 79, 89 [error to refuse defendant's requested

instruction on eyewitness testimony].)



AUTHORITY



Factors » People v. Wright (1988) 45 Cal.3d 1126, 1139, fn. 9, 1141;

People v. West (1983) 139 Cal.App.3d 606, 609.



COMMENTARY



The court should give the unbracketed factors, if requested, in every

case in which identity is disputed. The bracketed factors n, o, and p

should be given if requested and factually appropriate. Factor p has

been provided to include any factual circumstances relevant to

eyewitness identification that have not been addressed in the preceding

list of factors.Factor h addresses the situation where the

identification is made by a "single person show-up." Compare to factor

o, which specifically addresses photographic or physical lineups.In

People v. Wright (1988) 45 Cal.3d 1126, 1139, the court suggested that

the trial court should select factors from an approved list of

eyewitness identification factors and then give counsel the opportunity

to supplement with any additional relevant factors. (Id. at pp. 1126,

1143.) Additional "pinpoint" factors should be neutrally written,

brief, and nonargumentative. (Ibid.; see also People v. Gaglione (1994)

26 Cal.App.4th 1291, 1302-03, overruled on other grounds in People v.

Martinez (1995) 11 Cal.4th 434, 452.)



Copyright (C) 2000 Judicial Council of California



Draft Circulated for Comment Only



{54}



RELATED ISSUES



Unreliability of Eyewitness Identification



An instruction to view eyewitness testimony with caution and that

"mistaken identification is not uncommon" should not be given because

it improperly singles out this testimony as suspect. (People v. Wright

(1988) 45 Cal.3d 1126, 1153 [special cautionary instruction unnecessary

as duplicative of required eyewitness "factors" instruction]; see also

People v. Benson (1990) 52 Cal.3d 754, 805, fn. 12.) If a defendant

wants to present information on the unreliability of eyewitness

identifications under a particular set of circumstances, he or she must

use means other than a jury instruction,such as expert testimony.

(People v. Wright, supra, 45 Cal.3d at pp. 1126, 1153-54.)



Copyright (C) 2000 Judicial Council of California



Draft Circulated for Comment Only



{55}



420. Testimony of Child 10 Years of Age or Younger



You have heard testimony from a child under the age of 10. As with any

other witness, you must decide whether the child gave truthful and

accurate testimony.



In evaluating the child's testimony, you should consider all of the

factors surrounding that testimony, including the following:



1. How old is the child?



2. What is the level of the child's mental development?



3. Did the child understand the seriousness of giving testimony under

oath?



4. Did the child understand the questions?



5. Does the child have a good memory?



6. [______ [insert other relevant factors raised by the evidence].]



Although a child witness may behave differently than an adult, that

does not necessarily mean that a child is any more or less believable.

You should not discount or distrust the testimony of a child just

because of his or her age.



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to give an instruction on child 

witnesses; however, it must be given on request. (Pen. Code, § 1127f.)



AUTHORITY



Instructional Requirements » Pen. Code, § 1127f.



RELATED ISSUES



Due Process/Equal Protection Challenges



"The instruction provides sound and rational guidance to the jury in

assessing the credibility of a class of witnesses as to whom

`traditional assumptions' may previously have biased the fact-finding

process." (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-94

[instructing jury to make credibility determinations based on child's

age, level of cognitive development, and other factors surrounding

child's testimony does not inflate testimony of child witness and

thereby lessen prosecutor's burden of proof and deny defendant due

process and equal protection].)



{56}



Series 500 - Aiding & Abetting, Inchoate And Accessorial Crimes



Theories of Culpability



500. Aiding and Abetting: General Principles



501. Aiding and Abetting: Intended Crimes



501. Aiding and Abetting: Natural and Probable Consequences Doctrine

(Target and Non-Target Offenses Charged)



502. Aiding and Abetting: Natural and Probable Consequences Doctrine

(Only Non-Target Offense Charged) Accessorial Crimes



520. Accessories



530. Solicitation



531. Solicitation of a Minor



Task Force Comments on this Series



The task force recognizes that theories of culpability and inchoate

crimes present particularly challenging issues for the layperson

because they are theoretically complex and difficult to apply

factually. The same challenges exist in drafting clear, useful

instructions.



With respect to the aiding and abetting instructions, the committee

adopted three techniques to address this complexity. First, an

introductory instruction, called "General Principles," has been

provided which briefly explains liability under aiding and abetting and

the natural and probable consequences doctrine. Second, the

instructions themselves lead the jury step by step through the

requirements for each doctrine. Third, the instructions provide spaces

where the specific crimes alleged under each theory are to be inserted.

By identifying the specific crimes at each point, the prosecution's

theory of guilt is directly connected to the charged offense.



{57}



500. Aiding and Abetting: General Principles



The prosecution is alleging that the defendant may be guilty based on a

theory of aiding and abetting. Before I continue, I want to explain

some general principles about aiding and abetting and theories of guilt

in criminal law.



A person may be guilty of a crime in two ways. One, he or she may have

directly committed the crime. Two, he or she may have aided and abetted

another person, who committed the crime. Although the prosecutor must

prove different requirements for these theories, a person is equally

guilty of the crime whether he or she committed it personally or aided

and abetted someone else who committed it.



[Under some specific circumstances, if the evidence establishes aiding

and abetting of one crime, a person may also be found guilty of other

crimes that occurred during the commission of the first crime.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on aiding and abetting when

the prosecutor relies on it as a theory of culpability. (People v.

Beeman (1984) 35 Cal.3d 547, 560-561.)



When the prosecution is relying on aiding and abetting, give this

instruction before other instructions on aiding and abetting to

introduce this theory of culpability to the jury. If the prosecution is

also relying on the natural and probable consequences doctrine, the

court should also instruct with the last bracketed paragraph. Depending

on which theories are relied on by the prosecution, the court should

then instruct as follows.



Intended Crimes (Target Crimes)



If the prosecution's theory is that the defendant intended to aid and

abet the crime or crimes charged (target crimes), give instruction 501,

Aiding & Abetting: Intended Crimes.



Natural & Probable Consequences Doctrine (Non-Target Crimes)



If the prosecution's theory is that any of the crimes charged were

committed as a natural and probable consequence of the target crime,

instruction 502 or 503 should be given. If both the target and

non-target crimes are charged, give instruction 502, Natural & Probable

Consequences (Target and Non-Target Offenses.) In some cases, the

prosecution may not charge the target crime but only the non-target

crime. In that case,



{58}



give instruction 503, Natural & Probable Consequences (Only Non-Target

Offense Charged.)



{59}



501. Aiding and Abetting: Intended Crimes



The defendant is charged [in Count ______ ] with ______ [insert charged

offense[s]].



[If the prosecution's theory is that the defendant may also have been a

direct perpetrator, insert the elements of the crimes here.]



You may [also] find the defendant guilty of ______ [insert offense] if

(he/she) aided and abetted another person who committed that crime. I

will call that other person the "perpetrator." You may find the

defendant guilty under a theory of aiding and abetting only if the

prosecutor has proven:



1. The perpetrator committed ______ [insert offense].



2. The defendant knew that the perpetrator intended to commit ______

[insert offense].



3. Before or during the crime, the defendant aided and abetted the

perpetrator in committing ______ [insert offense].



AND



4. When the defendant acted, (he/she) intended to aid and abet the

perpetrator's commission of the crime.



[The perpetrator committed ______ [insert offense] if: ______ [insert

elements of offense substituting "perpetrator" for "defendant"].]



The defendant aided and abetted the perpetrator if he or she did or

said something that aided, facilitated, promoted, encouraged or

instigated the commission of the crime.



[The fact that a person is present at the scene of a crime or fails to

prevent the crime does not, by itself, make him or her an aider and

abettor.]



[If you conclude that defendant was present at the scene of the crime

or failed to prevent the crime you may consider that fact in

determining whether the defendant was an aider and abettor. However,

the mere presence at the scene of the crime or failure to prevent the

crime does not by itself constitute aiding and abetting.]



{60}



[Even a person who aids and abets a crime is not guilty of that crime

if he or she withdraws before the crime is committed. To withdraw, a

person must do two things. First, early enough to prevent the

commission of the crime, he or she must notify all others concerned in

the commission of the crime that he or she is withdrawing. Second, he

or she must do everything reasonably within his or her power to prevent

the crime from being committed. He or she does not have to actually

prevent the crime.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on aiding and abetting when

the prosecution relies on it as a theory of culpability. (People v.

Beeman (1984) 35 Cal.3d 547, 560-61.)



If there is evidence that the defendant was merely present at the scene

or only had knowledge that a crime was being committed, the court has a

sua sponte duty to give the bracketed portion regarding presence.

(People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14; In re Michael T.

(1978) 84 Cal.App.3d 907, 911.)



If there is evidence that the defendant withdrew from participation in

the crime, the court must give the bracketed portion regarding

withdrawal. (People v. Norton (1958) 161 Cal.App.2d 399, 403; People v.

Ross (1979) 92 Cal.App.3d 391, 404-05.)



Framework for Instructions



Give instruction 500, Aiding and Abetting: General Principles, before

this instruction. When the prosecution's theory is that defendant is

guilty either as an aider and abettor or as the direct perpetrator,

insert the elements of the crime after the first sentence. When the

prosecution's only theory is that the defendant is guilty as an aider

and abettor, insert the elements of the crime after "The perpetrator

committed the crime," substituting "perpetrator" for "defendant." (See

first bracketed paragraph.)



Related Instructions



If the prosecution charges non-target crimes under the Natural and

Probable Consequences Doctrine, give instruction 502, Natural and

Probable Consequences (All Crimes Charged) if both non-target and

target crimes have been charged and instruction 503, Natural and

Probable Consequences (Only Non-Target Crimes Charged) if only the

non-target crimes have been charged.



{61}



If there is an issue regarding how long a crime continues for purposes

of aiding and abetting liability, see the specific instructions in each

crime category on this principle. (For example, instruction __ Robbery:

Complete for Purposes of Aiding and Abetting.)



AUTHORITY



Definition of Principals » Pen. Code, § 31.



Requirements for Aiding and Abetting » People v. Beeman (1984) 35

Cal.3d 547, 560-561.



Presence or Knowledge Insufficient » People v. Boyd (1990) 222

Cal.App.3d 541, 557 fn.14; In re Michael T. (1978) 84 Cal.App.3d 907,

911.



Withdrawal » People v. Norton (1958) 161 Cal.App.2d 399, 403; People v.

Ross (1979) 92 Cal.App.3d 391, 404-405.



RELATED ISSUES



Accessory After the Fact



The prosecution must show that an aider and abettor intended to

facilitate or encourage the target offense before or during its

commission. If the defendant formed an intent to aid after the crime

was completed, then he or she may be liable as an accessory after the

fact. (People v. Cooper (1991) 53 Cal.3d 1158, 1160-61 [get-away

driver, whose intent to aid was formed after asportation of property,

was an accessory after the fact, not an aider and abettor]; People v.

Rutkowsky (1975) 53 Cal.App.3d 1069, 1072-73; People v. Rodriguez

(1986) 42 Cal.3d 730, 760-61.)



Factors Relevant to Aiding and Abetting



Factors relevant to determining whether a person is an aider and

abettor include: presence at the scene of the crime, companionship, and

conduct before or after the offense. (People v. Singleton (1987) 196

Cal.App.3d 488, 492, citing People v. Chagolla (1983) 144 Cal.App.3d

422, 429 People v. Campbell (1994) 25 Cal.App.4th 402, 409.)



Felony Murder



To prove guilt of felony murder as an aider and abettor, the prosecutor

must prove that the defendant formed the intent to aid and abet before

the commission of the killing. (People v. Pulido (1997) 15 Cal.4th 713,

724; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1393-97; see

instruction no. __, Felony-Murder: Aiding and Abetting.)



Perpetrator versus Aider and Abettor



For purposes of culpability the law does not distinguish between

perpetrators and aiders and abettors; however, the required mental

states that must be proved for each are different. One who engages in

conduct that is an element of the charged crime is a



{62}



perpetrator, not an aider and abettor of the crime. (People v. Cook

(1998) 61 Cal.App.4th 1364, 1371.)



Presence Not Required



A person may aid and abet a crime without being physically present. (

People v. Bohmer (1975) 46 Cal.App.3d 185, 199; see also People v.

Sarkis (1990) 222 Cal.App.3d 23, 27.) Nor does a person have to

physically assist in the commission of the crime; a person may be

guilty of aiding and abetting if he or she intends the crime to be

committed and instigates or encourages the perpetrator to commit it.

(People v. Booth (1996) 48 Cal.App.4th 1247, 1256.)



Principal Does Not Have to Be Convicted



Although the jury must find that the principal committed the crime

aided and abetted, the fact that a principal has been acquitted of a

crime or convicted of a lesser offense in a separate proceeding does

not bar conviction of an aider and abettor. (People v. Wilkins (1994)

26 Cal.App.4th 1089, 1092-1094; People v. Summersville (1995) 34

Cal.App.4th 1062, 1066-1069; People v. Rose (1997) 56 Cal.App.4th 990.)

A single Supreme Court case has created an exception to this principle

and held that non-mutual collateral estoppel bars conviction of an

aider and abettor when the principal was acquitted in a separate

proceeding. (People v. Taylor (1974) 12 Cal.3d 686, 696-98.) In Taylor,

the defendant was the `get-away driver' in a liquor store robbery in

which one of the perpetrators inadvertently killed another during a gun

battle inside the store. In a separate trial, the gunman was acquitted

of the murder of his co-perpetrator because the jury did not find

malice. The court held that collateral estoppel barred conviction of

the aiding and abetting driver, reasoning that the policy

considerations favoring application of collateral estoppel were served

in the case. The court specifically limited its holding to the facts,

emphasizing the clear identity of issues involved and the need to

prevent inconsistent verdicts. (See also People v. Howard (1988) 44

Cal.3d 375, 411-14 [court rejected collateral estoppel argument and

reiterated the limited nature of its holding in Taylor.)



Specific Intent Crimes



If a specific intent crime is aided and abetted, the aider and abettor

must share the requisite specific intent with the perpetrator. "[A]n

aider and abettor will `share' the perpetrator's specific intent when

he or she knows the full extent of the perpetrator's criminal purpose

and gives aid or encouragement with the intent or purpose of

facilitating the perpetrator's commission of the crime." (citations

omitted.) (People v. Beeman (1984) 35 Cal.3d 547, 560.) The perpetrator

must have the requisite specific intent and the jury must be so

instructed. (People v. Patterson (1989) 209 Cal.App.3d 610, [trial

court erred in failing to instruct jury that perpetrator must have

specific intent to kill]; People v. Torres (1990) 224 Cal.App.3d 763,

768-69.) And the jury must find that the aider and abettor shared the

perpetrator's specific intent. (People v. Acero (1984) 161 Cal.App.3d



{63}



217, 224 [to convict defendant of aiding and abetting and attempted

murder, jury must find that he shared perpetrator's specific intent to

kill].)



{64}



502. Natural and Probable Consequences Doctrine



(Target and Non-Target Offenses Charged)



The defendant is charged [in Counts ______] with ______ [insert target

offense] and ______ [insert non-target offense].



You must first decide whether the defendant is guilty of ______ [insert

target offense]. If you find the defendant is guilty of this crime, you

must then decide whether (he/she) is guilty of ______ [insert

non-target offense].



Give instruction 501, Aiding and Abetting: Intended Crimes, omitting

the first sentence and inserting elements of the target offense.



Under certain circumstances, a person who is guilty of one crime may

also be guilty of other crimes that were committed at the same time.



If you decide the defendant is guilty of ______ [insert target

offense], then you must also decide whether (he/she) is guilty of

______ [insert non-target offense].



You may find the defendant guilty of ______ [insert non-target offense]

only if the prosecutor has proven beyond a reasonable doubt that:



1. The defendant is guilty of ______ [insert target offense].



2. During the commission of the ______ [insert target offense], the

crime of ______ [insert non-target offense] was committed.



3. The commission of the ______ [insert non-target offense] was a

natural and probable consequence of the commission of the ______

[insert target offense].



The crime of ______ [insert non-target offense] was committed if:

______ [insert elements of non-target offense, substituting

"perpetrator" for "defendant"].



You must decide whether under all of the circumstances, a reasonable

person in the defendant's position would have or should have known that

the charged crime was a natural and probable consequence of the act the

defendant aided and abetted.



{65}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on aiding and abetting when

the prosecution relies on it as a theory of culpability. (People v.

Beeman (1984) 35 Cal.3d 547, 560-61.) The court has a sua sponte duty

to identify and instruct on any target offense relied on by the

prosecution as a predicate offense when substantial evidence supports

the theory. The court does not have to instruct on all potential target

offenses supported by the evidence. (People v. Prettyman (1996) 14

Cal.4th 248, 267-68.)



The target offense is the crime that the parties intended to commit.

The non-target is an additional unintended crime that occurs during the

commission of the target. When the court instructs on the commission of

the non-target offenses by the perpetrator, the court should begin with

the numbered elements of the crime and replace the word "defendant"

with the words "a perpetrator." For example, if burglary is charged as

a non-target offense, the court would instruct:



1. A perpetrator entered a (building/locked vehicle/______); and



2. When (he/she) entered the (building/locked vehicle/______), (he/she)

intended to commit a (theft/rape/assault/______ [insert other felony])

...



Order of Instructions



Give instruction 500, Aiding and Abetting: General Principles before

this instruction. This instruction should be used when the prosecution

relies on the Natural and Probable Consequences Doctrine and charges

both target and non-target crimes. If only non-target crimes are

charged, give instruction 503.



Related Instructions



If there is an issue regarding when a crime is continuing for purposes

of aiding and abetting, see the specific instruction in each offense

category on this principle. (For example, instruction no. __ Robbery:

Complete for Purposes of Aiding and Abetting)



AUTHORITY



Aiding and Abetting, defined » People v. Beeman (1984) 35 Cal.3d 547,

560-61.



Natural and Probable Consequences, Reasonable Person Standard » People

v. Nguyen (1993) 21 Cal.App.4th 518, 531.



{66}



COMMENTARY



In People v. Hammond (1986) 181 Cal.App.3d 463, 469, the court proposed

that the jury be instructed that it must specifically determine whether

the charged crimes were the "natural and probable consequences" of some

other criminal act defendant knowingly and intentionally aided or

encouraged. In People v Cox (1991) 53 Cal.3d 618, 668-69, the court

held that the proposed Hammond instructions were only required on

request. However, in People v. Prettyman (1996) 14 Cal.4th 248, 268,

the court concluded that the trial court must sua sponte identify and

describe for the jury any target offenses allegedly aided and abetted

by the defendant. Prettyman essentially subsumes Hammond, requiring

that the jury link the natural and probable consequences to the target

offense. (See People v. Williams (1997) 16 Cal.4th 635, 673-675

[applying Prettyman instruction compels no different result than

applying the Hammond/Cox instruction].) This instruction incorporates

both the Hammond and Prettyman instructional requirements.



This instruction does not explicitly define the terms "natural" and

"probable." No published case to date gives a clear definition of these

terms nor holds that there is a sua sponte duty to define them. For

further discussion of these terms, see People v. Prettyman (1996) 14

Cal.4th 248, 261; see also Id. at pp. 291-92 [dissent and concurring

opinion by Justice Brown]; People v. Croy (1985) 41 Cal.3d 1, 12;

People v. Kauffman (1907) 152 Cal. 331, 334; People v. Cooper (1991) 53

Cal.3d 1158, 1162; People v. Nguyen (1993) 21 Cal.App.4th 518, 530;

People v. Woods (1992) 8 Cal.App.4th 1570, 1583; People v. Brigham

(1989) 216 Cal.App.3d 1039, 1052-53.



RELATED ISSUES



See generally, the related issues under instruction 501, Aiding and

Abetting: Intended Crimes.



Lesser Included Offenses



The court has a duty to instruct on lesser included offenses that could

be the natural and probable consequence of the intended offense when

the evidence raises a question whether the greater offense is a natural

and probable consequence of the original, intended criminal act.

(People v. Woods (1992) 8 Cal.App.4th 1570, 1586-88 [aider and abettor

may be found guilty of second degree murder under doctrine of natural

and probable consequences although the principal was convicted of first

degree murder].)



Natural and Probable Consequences Does Not Apply to Felony Murder



Under Penal Code section 189, the natural and probable consequences

doctrine does not apply to aiding and abetting a felony murder. A

person who aids and abets an enumerated felony that results in a

killing is guilty of first degree murder. (See Pen. Code, § 189.) There

is no requirement that the homicide be a natural and probable

consequence of the enumerated felony. (People v. Dawson (1997) 60

Cal.App.4th 534, 543-46; People v.



{67}



Escobar (1996) 48 Cal.App.4th 999, 1018-20; but see People v. Pulido

(1997) 15 Cal.4th 713 [the person must aid and abet the felony before

the victim is killed]; see instruction __, Felony-Murder: Aiding and

Abetting.)



Specific Intent - Non-Target Crimes



Before an aider and abettor may be found guilty of a specific intent

crime under the natural and probable consequences doctrine, the jury

must first find that the perpetrator possessed the required specific

intent. (People v. Patterson (1989) 209 Cal.App.3d 610, 614 [trial

court erroneously failed to instruct the jury that they must find that

the perpetrator had the specific intent to kill necessary for attempted

murder before they could find the defendant guilty as an aider and

abettor under the `natural and probable' consequences doctrine],

disagreeing with People v. Hammond (1986) 181 Cal.App.3d 463 to the

extent it held otherwise.) However, it is not necessary that the jury

find that the aider and abettor had the specific intent; the jury must

only determine that the specific intent crime was a natural and

probable consequence of the original crime aided and abetted. (People

v. Woods (1992) 8 Cal.App.4th 1570, 1586-87.)



Target and Non-Target Offense May Consist of Same Act



Although generally, non-target offenses charged under the natural and

probable consequences doctrine will be different and typically more

serious criminal acts than the target offense alleged, they may consist

of the same act with differing mental states. (People v. Laster (1997)

52 Cal.App.4th 1450, 1463-66 [defendants were properly convicted of

attempted murder as a natural and probable consequence of aiding and

abetting the discharge of a firearm from a vehicle. Although both

crimes consist of the same act, attempted murder requires a more

culpable mental state].)



Target Offense Not Committed



The Supreme Court has left open the question whether a person may be

liable under the natural and probable consequences doctrine for a

non-target offense, if the target offense was not committed. (People v.

Prettyman (1996) 14 Cal.4th 248, 262, fn. 4.)



{68}



503. Natural and Probable Consequences



(Only Non-Target Offense Charged)



The defendant is charged [in Count] ______ with ______ [insert

non-target offense].



Before you may decide whether the defendant is guilty of ______ [insert

non-target offense], you must decide whether (he/she) is guilty of

______ [insert all alleged target offense[s]].



Give instruction 501, Aiding and Abetting: Intended Crimes, omitting

the first sentence.



You may find the defendant committed ______ [insert non-target

offenses] only if the prosecutor has proven beyond a reasonable doubt

that:



1. The defendant is guilty of ______ [insert all alleged target

offenses].



2. During the commission of the ______ [insert target offense], the

crime of ______ [insert non-target offense] was committed.



The crime of ______ [insert non-target offense] was committed ______

if: [instruct on elements of the non-target offense, substituting

"perpetrator" for "defendant"].



3. The commission of the ______ [insert non-target offense] was a

natural and probable consequence of the commission of the ______

[insert all alleged target offenses].



You must decide whether under all of the circumstances, a reasonable

person in the defendant's position would have or should have known that

the charged crime was a natural and probable consequence of the act the

defendant aided and abetted.



[The prosecution is alleging that the defendant originally intended to

aid and abet either ______ [insert target offense] or ______ [insert

alternative target offense]. The defendant is guilty of ______ [insert

non-target offense] only if you decide that the defendant aided and

abetted one of these crimes and that ______ [insert non-target offense]

was the natural and probable result of one of these crimes.



{69}



However, you do not need to agree about which of these two crimes the

defendant aided and abetted.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on aiding and abetting when

the prosecution relies on it as a theory of culpability. (People v.

Beeman (1984) 35 Cal.3d 547, 560-61.) The court has a sua sponte duty

to identify and instruct on any target offenses relied on by the

prosecution as a predicate offense that are supported by the evidence.

The court does not have to instruct on all potential target offenses

supported by the evidence. (People v. Prettyman (1996) 14 Cal.4th 248,

267-68.)



The target offense is the crime the parties intended to commit. The

non-target is an additional unintended crime that occurs during the

commission of the target. When the court instructs on the commission of

the non-target by the perpetrator, the court should begin with the

numbered elements of the crime and substitute "defendant" with

"perpetrator." For example, if murder is charged as a non-target

offense, the court should instruct:



1. The perpetrator caused the death of another person.



AND



2. (He/She) caused the death by an act committed with malice

aforethought.



Order of Instructions



Before this instruction, give instruction 500, Aiding and Abetting:

General Principles. This instruction should be used when the

prosecution relies on the Natural and Probable Consequences Doctrine

and charges only non-target crimes. If both target and non-target

crimes are charged, give instruction 501.



AUTHORITY



Aiding and Abetting, defined » People v. Beeman (1984) 35 Cal.3d 547,

560-61.



Natural and Probable Consequences, Reasonable Person Standard » People

v. Nguyen (1993) 21 Cal.App.4th 518, 531.



Presence or Knowledge Insufficient » People v. Boyd (1990) 222

Cal.App.3d 541, 557 fn.14; In re Michael T. (1978) 84 Cal.App.3d 907,

911.



Withdrawal » People v. Norton (1958) 161 Cal.App.2d 399, 403; People v.

Ross (1979) 92 Cal.App.3d 391, 404-05.



No Unanimity Required » People v. Prettyman (1996) 14 Cal.4th 248,

267-268.



{70}



RELATED ISSUES



See generally, the related issues section under instructions 501,

Aiding and Abetting, and 502, Aiding and Abetting: Natural and Probable

Consequences.



{71}



520. Accessories



The defendant is charged [in Count ______ ] with being an accessory to

a felony.



You may find the defendant guilty of being an accessory to a felony

only if the prosecutor has proven beyond a reasonable doubt that:



1. Another person, whom I will call the perpetrator, committed a

felony.



2. The defendant knew that the perpetrator had committed a felony or

that the perpetrator had been charged with or convicted of a felony.



3. After the felony had been committed, the defendant either harbored,

concealed, or aided the perpetrator.



AND



4. When the defendant acted, (he/she) intended that the perpetrator

avoid or escape arrest, trial, conviction, or punishment.



[The perpetrator committed the felony of ______ [insert felony] if:

______ [insert elements of felony, substituting "perpetrator" for

"defendant"].]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. There is no sua sponte duty to instruct on the

underlying felony unless it is unclear that a felony occurred. However,

the defendant is entitled to such an instruction on request. (People v.

Shields (1990) 222 Cal.App.3d 1, 4-5.)



AUTHORITY



Elements » Pen. Code, § 32; People v. Duty (1969) 269 Cal.App.2d 97,

100-01.



{72}



COMMENTARY



There is no authority defining "harbor." The committee therefore kept

"harbor" in the instruction. Black's Law Dictionary defines harbor as

"[t]he act of affording lodging, shelter, or refuge to a person, esp. a

criminal or illegal alien." (7th ed., 1999, at p. 721.) The court may

wish to give an additional definition depending on the facts of the

case.



RELATED ISSUES



Accessory and Principal to the Same Crime



There is a split of authority on whether a person may ever be guilty as

an accessory and a principal to the same crime. Early case law held

that it was not possible to be convicted of both because either logic

or policy prohibited it. (People v. Prado (1977) 67 Cal.App.3d 267,

271-73; People v. Francis (1982) 129 Cal.App.3d 241, 246-53.) However,

a later case disputed both of these cases and held "that there is no

bar to conviction as both principal and accessory where the evidence

shows distinct and independent actions supporting each crime." (People

v. Mouton (1993) 15 Cal.App.4th 1313, 1324, disapproved on other

grounds in People v. Prettyman (1996) 14 Cal.4th 248; People v. Riley

(1993) 20 Cal.App.4th 1808, 1816; but see People v. Nguyen (1993) 21

Cal.App.4th 518, 536 [suggesting in dicta that a person guilty as a

principal can never be guilty as an accessory].)



Awareness of the Commission of Other Crimes Insufficient to Establish

Guilt as an Accessory



Awareness that a co-perpetrator has committed other crimes is not

enough to find a person guilty as an accessory to those crimes unless

there is evidence that the person intentionally did something to help

the co-perpetrator avoid or escape arrest, trial, conviction or

punishment for those offenses. (People v. Nguyen (1993) 21 Cal.App.4th

518, 537 [defendants' convictions as accessories to sexual assaults

committed by coperpetrators in the course of a robbery reversed; no

evidence existed that defendants did anything to help co-perpetrators

escape detection].)



Passive Nondisclosure



Although a person is not guilty of being an accessory if he or she

fails or refuses to give incriminating information about a third party

to the police, providing a false alibi for that person violates the

accessory statute. (People v. Duty (1969) 269 Cal.App.2d 97, 103-04.)



{73}



530. Solicitation: Elements



The defendant is charged [in Count __ ] with soliciting the crime of

______ [insert target offense].



You may find the defendant guilty of solicitation only if the

prosecutor has proven beyond a reasonable doubt that:



1. The defendant asked [or ______ [insert other synonyms for solicit as

appropriate]] another person to commit [or join in the commission of]

the crime of ______ [insert target offense].



AND



2. The defendant intended that the crime of ______ [insert target

offense] be committed.



The defendant intended that the person commit ______ if (he/she)

intended that:



[Insert the elements of the crime substituting "person" for "defendant"

and changing past tense to present tense.]



Alternative A - Corroboration



The crime of solicitation must be proven by the testimony of one

witness and20 corroborating evidence.



Alternative B - Corroboration



The crime of solicitation must be proven by the testimony of two

witnesses or by the testimony of one witness and corroborating

evidence.



Corroborating evidence is evidence that (1) tends to connect the

defendant with the commission of the crime and (2) is independent of

the witness who testified about the fact of the solicitation.

Corroborating evidence need not establish each element of the crime or

prove guilt by itself. Corroborating evidence may include the

defendant's acts, statements, or conduct, or any other circumstance

that tends to connect (him/her) to the crime.



[A person is guilty of solicitation even if the crime solicited is not

completed or even started. The person solicited does not have to agree

to commit the crime.] [If you find the defendant guilty of

solicitation, you must decide how many crimes (he/she) solicited. When

deciding this question, consider the following factors:



{74}



1. Were the crimes solicited part of a plan with a single objective or

motive or did each crime solicited have a different objective or

motive?



2. Were the crimes solicited to be committed at the same time?



3. Were the crimes solicited to be committed in the same place?



4. Were the crimes solicited to be committed in the same way?



5. Was the payment for the crimes solicited one amount or different

amounts for each crime solicited?



Consider all of these factors when deciding whether the defendant's

alleged acts were a single crime or ______ [insert number of

solicitations alleged by prosecution] separate crimes of solicitation.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Although "ask" has been approved as an accurate

definition of solicit (People v. Gordon (1975) 47 Cal.App.3d 465, 472),

a blank has also been provided in element one to permit substituting

other words for "solicit." Other approved language includes: to

entreat, implore, importune, to make petition to, to plead for, to try

to obtain, to request, or to offer or invite another to commit a crime.

(People v. Phillips (1945) 70 Cal.App.2d 449, 453; People v. Sanchez

(1998) 60 Cal.App.4th 1490, 1494; Laurel v. Superior Court for Los

Angeles County (1967) 255 Cal.App.2d 292, 298.)



Penal Code section 653f lists those crimes that may be the target of a

solicitation. If the target crime is listed in subdivision (a) or (b)

of that section, insert the bracketed portion "[or join in the

commission of]." If the target crime is listed in subdivision (c), (d),

or (e), of the section, omit that bracketed portion.



Insert the elements of the target crime in the space provided. (See

People v. Baskins (1946) 72 Cal.App.2d 728, 732.) If the crime is

solicitation to commit murder, do not instruct on implied malice

murder. (People v. Bottger (1983) 142 Cal.App.3d 974, 980- 81.)



When instructing on the corroboration requirements, if the target crime

is listed in subdivision (d) or (e) of section 653f, give Alternative

A. If the target crime is listed in subdivision (a), (b), or (c) of

section 653f, give Alternative B.



Authority is divided on whether the judge or jury is to determine the

number of solicitations where multiple crimes were solicited by the

defendant. The bracketed portion at the end of the instruction should

be given concerning this issue if multiple



{75}



solicitations have been charged and the trial court determines that

this is a question for the jury. (Compare People v. Davis (1989) 211

Cal.App.3d 317, 322-23 with People v. Morocco (1987) 191 Cal.App.3d

1449, 1454.)



AUTHORITY



Elements » Pen. Code, § 653f.



Solicitation, Defined » People v. Gordon (1975) 47 Cal.App.3d 465, 472;

People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494.



RELATED ISSUES



Crime Committed Outside of California



The solicitation of a person in California to commit a felony outside

the state constitutes solicitation. (People v. Burt (1955) 45 Cal.2d

311, 314.)



Solicitation of Murder



When defining the crime of murder, in the case of a solicitation of

murder, the trial court must not instruct on implied malice as an

element of murder. Because the "crime of solicitation to commit murder

occurs when the solicitor purposely seeks to have someone killed and

tries to engage someone to do the killing," the person must have

express malice to be guilty of the solicitation. (People v. Bottger

(1983) 142 Cal.App.3d 974, 981.) An instruction on murder that includes

implied malice as an element has the potential of confusing the jury.

(Ibid.)



{76}



531. Solicitation of a Minor



The defendant is charged [in Count __ ] with soliciting a minor to

commit the crime1 of ______ [insert target offense].



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant voluntarily asked, encouraged, [induced], [or]

[intimidated] a minor to commit the crime of ______ [insert target

offense].



AND



2. (He/She) intended that the minor commit the crime of ______ [insert

target offense].



[3. At the time of the offense, the minor was 16 or 17 years old, and

the defendant was at least 5 years older than the minor.]



The defendant intended that the person commit ______ if (he/she)

intended that:



[Insert the elements of the crime substituting "person" for "defendant"

and changing past tense to present tense.]



A minor is a person under the age of 18.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Penal Code section 653j lists those offenses

that may be the target of a solicitation of a minor.



If the minor is 16 or 17 years old, the jury must find that the

defendant is at least 5 years older and the court must instruct sua

sponte on bracketed element 3. (Pen. Code, § 653j (a).)



AUTHORITY



Elements » Pen. Code, § 653j.



{77}



Series 600 - Defenses



600. Alibi



610. Duress or Threats



615. Necessity



616. Necessity: Escape from Prison or County Jail



620. Accident and Misfortune



640. Unconsciousness



650. Voluntary Intoxication



660. Mistake of Fact



661. Mistake of Law



680. Statute of Limitations



690. Insanity: Determination, Effect of Verdict



{78}



600. Alibi



The defendant is not guilty of ______ [insert crime] if (he/she) was

not present when the crime was committed.



If you have a reasonable doubt that the defendant was present when the

crime[s] (was/were) committed, you must find (him/her) not guilty.



[However, if the evidence establishes beyond a reasonable doubt that

the defendant (aided and abetted the commission of/was a co-conspirator

in the commission of) the crime [of______ [insert crime]], (his/her)

presence is not required.]



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to instruct on alibi. (People v.

Freeman (1978) 22 Cal.3d 434, 437-38; People v. Alcala (1992) 4 Cal.4th

742, 803-04.) The court must give this instruction on request when

evidence of alibi has been introduced. (People v. Whitson (1944) 25

Cal.2d 593, 603 [no sua sponte duty even if substantial evidence has

been introduced by the defense]; People v. Freeman (1978) 22 Cal.3d

434, 437-38.)



The defendant is not entitled to an instruction on alibi if the

prosecution does not rely on the defendant's presence at the commission

of the crime to establish culpability. (People v. Manson (1976) 61

Cal.App.3d 102, 211 [in prosecution for conspiracy and murder,

defendant was not entitled to a jury instruction on alibi, where the

prosecution never contended he was present at the time of the actual

commission of any homicide and his presence was not a requirement for

culpability].) However, if the prosecution's theory is that the

defendant was either at the scene or alternatively, aided and abetted

or conspired, without being present, the last bracketed paragraph

should be given. (People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28. If

this paragraph is given, the court has a sua sponte duty to instruct on

aiding and abetting. (Ibid. [court properly instructed that alibi was

not a defense in an aiding and abetting case, but failed to define

aiding and abetting].)



AUTHORITY



Burden of Proof » In re Corey (1964) 230 Cal.App.2d 813, 828.



Alibi: Aiding and Abetting » People v. Sarkis (1990) 222 Cal.App.3d 23,

26-28.



RELATED ISSUES



{79}



Scrutinizing Alibi Evidence



Alibi evidence need only raise a reasonable doubt that the defendant

was not present at the scene of the crime. It is therefore error to

instruct the jury (1) that an alibi must be proved by a preponderance

of the evidence, (2) that alibi evidence must convince the jury of the

defendant's innocence, (3) that the jury must give less credit to the

testimony of alibi witnesses, or (4) that the jury must give more

careful scrutiny or less weight to alibi evidence than to other

evidence. (People v. Costello (1943) 21 Cal.2d 760, 763.)



{80}



610. Duress or Threats



The defendant is not guilty of ______ [insert crime] if (he/she) acted

under duress.



The defendant acted under duress if, because of threat or menace,

(he/she) believed that (his/her/another person's) life would be in

immediate danger if (he/she) refused a demand or request to commit the

crime. The demand or request may have been express or implied.



The defendant's belief that (he/she/another person) was in immediate

danger must have been reasonable. When deciding whether the defendant's

belief was reasonable, consider all the circumstances as they were

known to and appeared to the defendant and consider what a reasonable

person in the same position as the defendant would have believed.



The prosecutor must prove beyond a reasonable doubt that the defendant

did not commit the crime because of duress. If the prosecutor fails to

do so, you must find the defendant not guilty.



[A threat of future harm is not sufficient; the danger must have been

immediate.]



[This defense does not apply to the crime of ______ [insert crime(s)

punishable by death].]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on a defense when the

defendant is relying on this defense, or if there is substantial

evidence supporting the defense and it is not inconsistent with the

defendant's theory of the case. (See People v. Breverman (1998) 19

Cal.4th 142, 156 [addressing court's sua sponte instructional duties on

defenses and lesser included offenses generally]; People v. Sedeno

(1974) 10 Cal.3d 703, 716-17, overruled by Breverman, supra, on a

different point; see also People v. Subielski (1985) 169 Cal.App.3d

563, 566-67 [no sua sponte duty because evidence did not support

complete duress].)



As provided by statute, duress is not a defense to crimes punishable by

death. (Pen. Code, § 26(6).) If such a crime is charged, the court

should instruct, using the last bracketed paragraph, that the defense

is not applicable to that count.



{81}



Related Instructions



The defense of duress applies when the threat of danger is immediate

and accompanied by a demand, either direct or implied, to commit the

crime. (People v. Heath (1989) 207 Cal.App.3d 892, 899-901; People v.

Steele (1988) 206 Cal.App.3d 703, 706.) If the threat is of future harm

or there is no implicit or explicit demand that the defendant commit

the crime, the evidence may support instructing on the defense of

necessity. (See instruction 615, Necessity.)



AUTHORITY



Instructional Requirements » Pen. Code, § 26(6).



Burden of Proof » People v. Graham (1976) 57 Cal.App.3d 238, 240.



RELATED ISSUES



Great Bodily Harm



Penal Code section 26(6) discusses life-endangering threats and several

older cases have outlined the defense of duress in the literal language

of the statute. However, some cases have concluded that fear of great

bodily harm is sufficient to raise this defense. (Compare People v.

Hart (1950) 98 Cal.App.2d 514, 516 and People v. Lindstrom (1932) 128

Cal.App. 111, 116 with People v. Otis (1959) 174 Cal.App.2d 119, 124;

see also 1 Witkin, Cal. Criminal Law (2d ed. 1988) Fear of Bodily Harm,

§ 235, p. 271 [discussing this split]; but see People v. Subielski

(1985) 169 Cal.App.3d 563, 566-67 [court rejects defense of duress

because evidence showed defendant feared only a beating].) It is clear,

however, that threats of great bodily harm are sufficient in the

context of necessity. (People v. Lovercamp (1974) 43 Cal.App.3d 823,

831; People v. Pena (1983) 149 Cal.App.3d Supp. 14, 27.)



Third Person Threatened



In People v. Pena (1983) 149 Cal.App.3d Supp. 14, 21-25, the court held

that the defenses of necessity and duress may be based on threats of

harm to a third party. Although Pena is regarded as a necessity case,

its discussion of this point was based on out-of-state and secondary

authority involving the defense of duress. (See People v. Heath (1989)

207 Cal.App.3d 892, 898 [acknowledging that though Pena uses the terms

necessity and duress interchangeably, it is really concerned with the

defense of necessity].) No other California cases discussing threats

made to a third party and duress were found. (See also 1 Witkin, Cal.

Criminal Law (2d ed. 1988) Threat of Harm to Another, § 236, pp. 271-72

[discussing Pena on this point].)



{82}



615. Necessity



The defendant is not guilty of ______ [insert crime] if (he/she) acted

because of legal necessity. To establish this defense, the defendant

must prove that it is more likely than not that:



1. (He/She) acted to prevent a harm or evil to (himself/herself/another

person.) The harm or evil must have been significant and physical.



2. (He/She) had no adequate alternative.



3. The potential for harm from the defendant's acts was not out of

proportion to the harm or evil with which (he/she/another person) was

threatened.



4. When the defendant acted, (he/she) actually believed that the act

was1 necessary to prevent the threatened harm or evil.



5. A reasonable person would also have believed that the act was

necessary under the circumstances.



AND



6. The defendant did not substantially contribute to the need to act.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on necessity when there is

sufficient evidence supporting each of the factors establishing the

defense. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [no duty to

instruct sua sponte where evidence did not, as a matter of law, support

this defense]; see In re Eichorn (1998) 69 Cal.App.4th 382, 389

[defendant requested instruction on necessity and court, citing Pepper,

supra, held that "an instruction on necessity was required," where

sufficient evidence established the defense].)



Related Instructions



If the threatened harm was immediate and accompanied by a demand to

commit the crime, the defense of duress may apply. (See instruction,

610, Duress or Threats.)



{83}



AUTHORITY



Instructional Requirements » People v. Pena (1983) 149 Cal.App.3d Supp.

14; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035; People v. Kearns

(1997) 55 Cal.App.4th 1128, 1135-36.



Burden of Proof » People v. Waters (1985) 163 Cal.App.3d 935, 938;

People v. Condley (1977) 69 Cal.App.3d 999, 1008.



RELATED ISSUES



Abortion Protests



The defense of necessity is not available to one who attempts to

interfere with another person's exercise of a constitutional right

(e.g., demonstrators at an abortion clinic). (People v. Garziano (1991)

230 Cal.App.3d 241, 244.)



Economic Necessity



Necessity caused by economic factors is valid under the doctrine. A

homeless man was entitled to an instruction on necessity as a defense

to violating an ordinance prohibiting sleeping in park areas. Lack of

sleep is arguably a significant evil and his lack of economic resources

prevented a legal alternative to sleeping outside. (In re Eichorn

(1998) 69 Cal.App.4th 382, 389-91.)



Medical Necessity



There is a common law and statutory defense of medical necessity. The

common law defense contains the same requirements as the general

necessity defense. (See People v. Tribbet (1997) 56 Cal.App.4th 1532,

1538.) The statutory defense relates specifically to the use of

marijuana and is based on Health and Safety Code section 11362.5, the

"Compassionate Use Act."



{84}



616. Necessity: Escape from Prison or County Jail



The defendant is not guilty of (escape/attempted escape) from (state

prison/county jail) if (he/she) acted because of legal necessity. To

establish this defense, the defendant must prove it is more likely than

not that:



1. The defendant faced a specific threat of death, forcible sexual

attack, or substantial bodily injury in the immediate future.



2. (He/She) had no opportunity to complain to the authorities [or there

was such a history of official inaction that a reasonable person in the

same circumstances would have believed that a complaint would have been

useless].



3. The defendant had no opportunity to obtain protection from a court.



4. (He/She) did not use force or violence against a (prison/jail)

employee or another innocent person in the (escape/attempted escape).



AND



Alternative A - report to authorities



5A. (He/She) reported to the appropriate authorities as soon as

(he/she) was safe from the immediate threat.



Alternative B - intent to report



5B. (He/She) intended to report to the appropriate authorities as soon

as (he/she) was safe from the immediate threat, but was apprehended

first.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on necessity when there is

sufficient evidence supporting each of the factors establishing the

defense. (People v. Lovercamp (1974) 43 Cal.App.3d 823, 831-32.)



Related Instructions



{85}



When necessity is raised as a defense to crimes other than escape, the

court should give instruction 615, Necessity.



AUTHORITY



Instructional Requirements » People v. Lovercamp (1974) 43 Cal.App.3d

823, 831-32.



Burden of Proof » People v. Waters (1985) 163 Cal.App.3d 935, 938;

People v. Condley (1977) 69 Cal.App.3d 999, 1013.



RELATED ISSUES



See generally, the related issues section under instruction 615,

Necessity.



{86}



620. Accident and Misfortune



Intent Crimes



The defendant is not guilty of ______ [insert crime] if (he/she) acted

[or failed to act] without the intent required for that crime, but

acted instead through accident or misfortune. You may not find the

defendant guilty of ______ [insert crime] unless you are convinced

beyond a reasonable doubt that (he/she) acted with the required intent.



Criminal Negligence Crimes



The defendant is not guilty of ______ [insert crime] if (he/she) acted

[or failed to act] through accident or misfortune without criminal

negligence. You may not find the defendant guilty of ______ [insert

crime] unless you are convinced beyond a reasonable doubt that (he/she)

acted with criminal negligence.



BENCH NOTES



Instructional Duty



The court must give this instruction on request when evidence of

accident or misfortune is introduced and the defendant requests an

instruction on this defense. (People v. Acosta (1955) 45 Cal.2d 538,

544.)



When instructing on the defense of accident and misfortune, only the

mental state relevant to the crime charged should be included in the

instruction. (People v. Lara (1996) 44 Cal.App.4th 102, 109 [trial

court erred in instructing on criminal negligence in battery case

because battery is a general intent crime].) The first paragraph is

given if the defense is raised to a general or specific intent crime.

The second paragraph is given if the defense is raised to a crime that

is committed by criminal negligence. In either case, the court should

insert the specific crime in the space provided. If both intent and

negligence crimes are charged, instruct with both paragraphs and insert

the crimes in their respective spaces.



Related Instructions



If murder is charged, see instruction 715, Excusable Homicide: Accident

and Misfortune.



AUTHORITY



Instructional Requirements » Pen. Code, §§ 26(5), 195.



Burden of Proof » People v. Black (1951) 103 Cal.App.2d 69, 79; People

v. Frye (1992) 7 Cal.App.4th 1148, 1154-55.



{87}



Criminal Negligence » People v. Lara (1996) 44 Cal.App.4th 102, 109.



RELATED ISSUES



Misfortune Defined



"`Misfortune' when applied to a criminal act is analogous [to] the word

`misadventure' and bears the connotation of accident while doing a

lawful act." (People v. Gorgol (1953) 122 Cal.App.2d 281, 308.)



{88}



640. Unconsciousness



The defendant is not guilty of ______ [insert crime] if (he/she) acted

while legally unconscious. Under the law, someone is unconscious when

he or she is not aware of his or her actions. [Someone may be

unconscious even though able to move.]



Unconsciousness may be caused by a blackout, an epileptic seizure,

involuntary intoxication, somnambulism (sleepwalking), or some other

similar condition.



The prosecutor must prove beyond a reasonable doubt that the defendant

was conscious when (he/she) acted. Unless you are convinced beyond a

reasonable doubt, that the defendant was conscious when (he/she) acted,

you must find him/her not guilty.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on unconsciousness if the

defendant is relying on this defense or if there is substantial

evidence supporting the defense and it is not inconsistent with the

defendant's theory of the case. (See People v. Breverman (1998) 19

Cal.4th 142, 156 [addressing court's sua sponte instructional duties on

defenses and lesser included offenses generally];People v. Sedeno

(1974) 10 Cal.3d 703, 716-17 [duty to instruct on unconsciousness],

overruled by Breverman, supra, on different grounds.)



Because there is a presumption that a person who acts conscious is

conscious (People v. Hardy (1948) 33 Cal.2d 52, 63-64), the defendant

must produce sufficient evidence raising a reasonable doubt that he or

she was conscious before an instruction on unconsciousness may be

given. (Ibid.; People v. Kitt (1978) 83 Cal.App.3d 834, 842

[presumption of consciousness goes to the defendant's burden of

producing evidence].)



AUTHORITY



Instructional Requirements » Pen. Code, § 26(4); People v. Stewart

(1976) 16 Cal.3d 133, 140.



Burden of Proof » Pen. Code, § 607; People v. Hardy (1948) 33 Cal.2d

52, 64; People v. Cruz (1978) 83 Cal.App.3d 308, 330-31.



Unconsciousness Defined » People v. Newton (1970) 8 Cal.App.3d 359,

376; People v. Heffington (1973) 32 Cal.App.3d 1, 9.



{89}



Examples of Unconscious States:



* Somnambulism or Delirium » People v. Methever (1901) 132 Cal. 326,

329, overruled on other grounds in People v. Gorshen (1953) 51 Cal.2d

716.



* Blackouts » People v. Cox (1944) 67 Cal.App.2d 166, 172.



* Epileptic Seizures » People v. Freeman (1943) 61 Cal.App.2d 110,

115-16.



* Involuntary Intoxication » People v. Heffington (1973) 32 Cal.App.3d

1, 8.



COMMENTARY



The committee did not include an instruction on the presumption of

consciousness. There is a judicially created presumption that a person

who acts conscious is conscious. (People v. Hardy (1948) 33 Cal.2d 52,

63-64.) Although an instruction on this presumption has been approved,

it has been highly criticized. (See People v. Kitt (1978) 83 Cal.App.3d

834, 842-43 [acknowledging instruction and suggesting modification];

People v. Cruz (1978) 83 Cal.App.3d 308, 332 [criticizing CALJIC

instruction for failing to adequately explain the presumption].)



The effect of this presumption is to place on the defendant a burden of

producing evidence to dispel the presumption. (Cruz, supra, at pp.

330-31; Kitt, supra, at p. 842; and see People v. Babbitt (1988) 45

Cal.3d 660, 689-96 [an instruction on this presumption "did little more

than guide the jury as to how to evaluate evidence bearing on the

defendant's consciousness and apply it to the issue."].) However, if

the defendant produces enough evidence to warrant an instruction on

unconsciousness, the rebuttable presumption of consciousness has been

dispelled and no instruction on its effect is necessary. The committee,

therefore, concluded that no instruction on the presumption of

consciousness was needed.



RELATED ISSUES



Inability to Remember



Generally, a defendant's inability to remember or his hazy recollection

does not supply an evidentiary foundation for a jury instruction on

unconsciousness. (People v. Heffington (1973) 32 Cal.App.3d 1, 10);

People v. Sameniego (1931) 118 Cal. App. 165, 173 ["The inability of a

defendant ... to remember ... is of such common occurrence and so

naturally accountable for upon the normal defects of memory, or, what

is more likely, the intentional denial of recollection, as to raise not

even a suspicion of declarations having been made while in an

unconscious condition."].) In People v. Coston (1947) 82 Cal.App.2d 23,

40-41, the court stated that forgetfulness may be a factor in

unconsciousness; however, "there must be something more than [the

defendant's] mere statement that he does not remember what happened to

justify a finding that he was unconscious at the time of that act."



{90}



Two cases have held that a defendant's inability to remember warrants

an instruction on unconsciousness. (People v. Bridgehouse (1956) 47

Cal.2d 406 and People v. Wilson (1967) 66 Cal.2d 749, 761-62.) Both

cases were discussed in People v. Heffington (1973) 32 Cal.App.3d 1,

but the court declined to hold that Bridgehouse and Wilson announced an

"ineluctable rule of law" that "a defendant's inability to remember or

his `hazy' recollection supplies an evidentiary foundation for a jury

instruction on unconsciousness." (Id. at p. 10.) The court stated that,

"[b]oth [cases] were individualized decisions in which the court

examined the record and found evidence, no matter how incredible,

warranting the instruction." (Ibid.)



Intoxication - Involuntary versus Voluntary



Unconsciousness due to involuntary intoxication is a complete defense

to a criminal charge under Penal Code section 26 subdivision (4).

(People v. Heffington (1973) 32 Cal.App.3d 1, 8.) Unconsciousness due

to voluntary intoxication is governed by Penal Code section 22, rather

than section 26, and is not a defense to a general intent crime.

(People v. Chaffey (1994) 25 Cal.App.4th 852, 855.)



Mental Condition



A number of authorities have stated that a decisional conflict exists

in California over whether an unsound mental condition can form the

basis of a defense of unconsciousness. (See People v. Lisnow (1978) 88

Cal.App.3d Supp. 21, 23; 1 Witkin Cal. Criminal Law (2d ed. 1988)

Unconsciousness, § 214, pp. 246-48 [noting the split and concluding

that the more recent cases permit the defense for defendants of unsound

mind]; Annot., Automatism or Unconsciousness as a Defense or Criminal

Charge (1984) 27 A.L.R.4th 1067, § 3(b) fn. 7.)



{91}



650. Voluntary Intoxication



The defendant is not guilty of ______ [insert crime] if he did not

(intend to ______/know ______ / ______ [insert specific mental state]]

because (he/she) was voluntarily intoxicated when (he/she) acted.



[Intoxication is voluntary if the defendant willingly used any

intoxicating drink, drug, or other substance knowing that it could

produce an intoxicating effect.]



If you have a reasonable doubt that the defendant had the required

intent [or mental state] when (he/she) acted, you must find (him/her)

not guilty of ______ [insert crime].



[Voluntary intoxication is not a defense to ______ [insert charged

general intent crimes].]



BENCH NOTES



Instructional Duty



The court has no sua sponte duty to instruct on voluntary intoxication;

however, the trial court must give this instruction on request. (People

v. Ricardi (1992) 9 Cal.App.4th 1427, 1432; People v. Castillo (1997)

16 Cal.4th 1009, 1014; People v. Saille (1991) 54 Cal.3d 1103, 1119.)

Although voluntary intoxication is not an affirmative defense to a

crime, the jury may consider evidence of voluntary intoxication and its

effect on the defendant's ability to form specific mental states. (Pen.

Code, § 22; People v. Reyes (1997) 52 Cal.App.4th 975, 982-86 [relevant

to knowledge element in receiving stolen property]; People v. Mendoza

(1998) 18 Cal.4th 1114, 1131-34 [relevant to mental state in aiding and

abetting].)



Voluntary intoxication may not be considered for general intent crimes.

(People v. Menodza (1998) 18 Cal.4th 1114, 1127-28; see also People v.

Hood (1969) 1 Cal.3d 444, 451 [applying specific v. general intent

analysis and holding that assault type crimes are general intent;

subsequently superceded by amendments to Penal Code § 22 on a different

point].)



If both specific and general intent crimes are charged, the court must

specify those general intent crimes in the last bracketed paragraph and

instruct the jury that voluntary intoxication is not a defense to those

crimes. (People v. Aguirre (1995) 31 Cal.App.4th 391, 399-402; People

v. Rivera 162 Cal.App.3d 141, 145-46.)



{92}



The second paragraph is given if there is an issue about the

voluntariness of defendant's intoxication.



Related Instructions



Murder: Voluntary Intoxication, instruction __ (People v. Castillo

(1997) 16 Cal.4th 1009).



Aiding and Abetting: Voluntary Intoxication, instruction __ (People v.

Mendoza (1998) 18 Cal.4th 1114, 1131-34).



Involuntary Intoxication, instruction __ (People v. Scott (1983) 146

Cal.App.3d 823, 831-32; People v. Velez (1985) 175 Cal.App.3d 785, 795).



AUTHORTIY



Instructional Requirements » Pen. Code, § 22; People v. Castillo (1997)

16 Cal.4th 1009, 1014; People v. Saille (1991) 54 Cal.3d 1103, 1119.



Burden of Proof » People v. Saille (1991) 54 Cal.3d 1103, 1106.



RELATED ISSUES



Intoxication Based on Mistake of Fact is Involuntary



Intoxication resulting from trickery is not "voluntary." (People v.

Scott (1983) 146 Cal.App.3d 823, 831-833 [defendant drank punch not

knowing it contained hallucinogens; court held his intoxication was

result of trickery and mistake and involuntary].)



Unconsciousness Based on Voluntary Intoxication is Not a Complete

Defense



Unconsciousness is typically a complete defense to a crime except when

it is caused by voluntary intoxication. (People v. Heffington (1973) 32

Cal.App.3d 1, 8.) Unconsciousness caused by voluntary intoxication is

governed by Penal Code section 22, rather than by section 26 and is only

a partial defense to a crime. (People v. Walker (1993) 14 Cal.App.4th

1615, 1621 [no error in refusing to instruct on unconsciousness when

defendant was voluntarily under the influence of drugs at the time of

the crime]; see also People v. Ochoa (1998) 19 Cal.4th 353, 423 ["if the

intoxication is voluntarily induced, it can never excuse homicide. Thus,

the requisite element of criminal negligence is deemed to exist

irrespective of unconsciousness, and a defendant stands guilty of

involuntary manslaughter if he voluntarily procured his own

intoxication."].)



{93}



660. Mistake of Fact



The defendant is not guilty of ______ [insert crime] if (he/she) did not

have the intent or mental state required to commit the crime because

(he/she) [reasonably] did not know a fact or [reasonably and] mistakenly

believed a fact.



If the defendant's conduct would have been lawful under the facts as

(he/she) [reasonably] believed them to be, (he/she) did not commit

______ [insert crime].



If you find that the defendant believed that ______ [insert alleged

mistaken facts] [and if you find that belief was reasonable], (he/she)

did not have the specific intent or mental state required for ______

[insert crime].



If you have a reasonable doubt whether the defendant had the specific

intent or mental state required for ______ [insert crime], you must find

(him/her) not guilty of that crime.





BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on mistake of fact if

substantial evidence supports this defense. (People v. Lucero (1988) 203

Cal.App.3d 1011, 1018.) This instruction also must be given on request.

(People v. Goodman (1970) 8 Cal.App.3d 705, 709.)



Depending on the crime charged, the trial court must instruct with the

bracketed language requiring that defendant's belief be both actual and

reasonable. The following crimes require that the defendant's belief be

reasonable and actual and require this bracketed language:



Assault » People v. Rivera (1984) 157 Cal.App.3d 736.



Bigamy » People v. Vogel (1956) 46 Cal.2d 798, 803.



Kidnapping » People v. Barnett (1998) 17 Cal.4th 1044.



Trespass and Burglary » People v. Irizarry (1995) 37 Cal.App.4th 967,

975.



Rape » People v. Mayberry (1975) 15 Cal.3d 143, 153-59.



Statutory Rape » People v. Hernandez (1964) 61 Cal.2d 529, 535.



Molesting a Minor » People v. Atchinson (1978) 22 Cal.3d 181.



{94}



Contributing to the Delinquency of a Minor » People v. Atchinson (1978)

22 Cal.3d 181.



Oral Copulation With a Minor » People v. Peterson (1981) 126 Cal.App.3d

396.



Soliciting, Inducing, Encouraging, and Intimidating a Minor to Knowingly

Use a Narcotic in Violation of Health & Saf. Code, § 11353 » People v.

Goldstein (1982) 130 Cal.App.3d 1024, 1036.



The following type of crimes require that the defendant only actually

believe in the mistake and the bracketed language on reasonableness is

not required:



Theft Crimes » People v. Navarro (1979) 99 Cal.App.3d Supp. 1.



Mistake of fact about a person's age is not a defense to the following

crimes:



Involuntary Manslaughter » People v. Velez (1983) 144 Cal.App.3d 558,

565-66.



Furnishing Marijuana to a Minor » Health & Saf. Code, § 11352; People v.

Lopez (1969) 271 Cal.App.2d 754, 760-62.



Selling Narcotics to a Minor » Health & Saf. Code, § 11353; People v.

Williams (1991) 233 Cal.App.3d 407 [specific intent for the crime of

selling narcotics to a minor is the intent to sell cocaine, not to sell

it to a minor].



Aggravated Kidnapping of a Child Under the Age of 14 » Pen. Code, §

208(b); People v. Magpuso (1994) 23 Cal.App.4th 112.



Lewd and Lascivious Conduct with a Child Under the Age of 14 » Pen.

Code, § 288(a); People v. Olsen (1984) 36 Cal.3d 638.



AUTHORITY



Instructional Requirements » Pen. Code, § 26(3)



Burden of Proof » People v. Mayberry (1975) 15 Cal.3d 143, 157.



RELATED ISSUES



Mistake of Fact Based On Involuntary Intoxication



A mistake of fact defense can be based on involuntary intoxication.

(People v. Scott (1983) 146 Cal.App.3d 823, 829-33.) In Scott the court

held that the defendant was entitled to an instruction on mistake of

fact, as a matter of law, where the evidence established that he

unknowingly and involuntarily ingested a hallucinogen. As a result he

acted under the delusion that he was a secret agent in a situation where

it was necessary to steal vehicles in order to save his own life and

possibly that of the President. The court held that although defendant's

mistake of fact was irrational, it was reasonable because of his

delusional state and had the mistaken facts been true, his actions would

have been justified under the doctrine of necessity. The court also

stated that mistake of fact would



{95}



not have been available if defendant's mental state had been caused by

voluntary intoxication. (Id. at pp. 829-33; see also People v. Kelly

(1973) 10 Cal.3d 565, 573 [mistake of fact based on voluntary

intoxication is not a defense to a general intent crime].)



Mistake of Fact Based on Mental Disease



Mistake of fact is not a defense to general criminal intent if the

mistake is based on mental disease. (People v. Gutierrez (1986) 180

Cal.App.3d 1076, 1084. In Gutierrez, the defendant was charged with

inflicting cruel injury upon a child, a general intent crime, because

she beat her own children under the delusion that they were evil birds

she had to kill. The defendant's abnormal mental state was caused in

part by mental illness. (Id. at p. 1083.) The court concluded that

evidence of her mental illness was properly excluded at trial because

mental illness could not form the basis of her mistake of fact defense.

(Id. at pp. 1083-1084.)



{96}



661. Defenses: Mistake of Law



It is no defense to the crime of ______ [insert crime] that the

defendant did not know (he/she) was breaking the law.



BENCH NOTES



Instructional Duty



It is no defense to a crime that the defendant did not realize he or she

was breaking the law when he or she acted. (People v. Vineberg (1981)

125 Cal.App.3d 127, 137.) This is true even when the defendant claims he

or she was acting in good faith on the mistaken advice of counsel.

(People v. Snyder (1982) 32 Cal.3d 590 [defendant's mistaken belief,

based on attorney's advice, that prior conviction was a misdemeanor no

defense to felon in possession of a firearm]; People v. McCalla (1923)

63 Cal.App. 783, 795 [reliance on advice of counsel not a defense to

illegally issuing an instrument under Corporate Securities Act]; People

v. Honig (1996) 48 Cal.App.4th 289, 347-48 ["the defense of action taken

in good faith, in reliance upon the advice of a reputable attorney that

it was lawful, has long been rejected. The theory is that this would

place the advice of counsel above the law, and would also place a

premium on counsel's ignorance or indifference to the law"]; People v.

Smith (1966) 63 Cal.2d 779, 792-93 [no defense to felony murder that

defendant did not know that entering a store intending to pass a forged

check constituted burglary in California].)



Related Instructions



A mistaken belief about legal status or rights may be a defense to a

specific intent crime if the mistake is held in good faith. (People v.

Vineberg (1981) 125 Cal.App.3d 127, 137 [defendants' belief that they

had a legal right to use clients' gold reserves to buy future contracts

could be a defense if held in good faith]; (People v. Stewart (1976) 16

Cal.3d 133, 140 [defendant's good faith belief that he was legally

authorized to use property could be defense to embezzlement]; People v.

Flora (1991) 228 Cal.App.3d 662, 669-70 [defendant's belief, if held in

good faith, that out-of-state custody order was not enforceable in

California could have been basis for defense to violating a child

custody order]; see also 1 Witkin & Epstein, Cal. Criminal Law (2d ed.

1988) Defenses, § 219.) Although concerned with knowledge of the law, a

mistake about legal status or rights is a mistake of fact, not a mistake

of law. (See instruction 660, Mistake of Fact.)



{97}



AUTHORITY



Instructional Requirements » People v. Vineberg (1981) 125 Cal.App.3d

127, 137; People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Flora

(1991) 228 Cal.App.3d 662, 669-70.



RELATED ISSUES



Good Faith Reliance on Statute or Regulation



Good faith reliance on a facially valid statute or administrative

regulation (which turns out to be void) may be considered an excusable

mistake of law. Additionally, a good faith mistake-of-law defense may be

established by special statute. (See 1 Witkin, Cal. Criminal Law (2d ed.

1988) Reliance on Statute, § 220, pp. 254-55.)



{98}



680. Statute of Limitations



A defendant may be convicted of ______ [insert crime] only if the

prosecution began within __ years of the date the crime (was

committed/was discovered/should have been discovered). The present

prosecution began on ______ [insert date].



[A crime "should have been discovered" when the (victim/law enforcement

officer) was aware of facts that would have alerted a reasonably

diligent (person/law enforcement officer) in the same circumstances to

the fact that a crime may have been committed.]



The prosecutor must prove that it is more likely than not that

prosecution of this case began within the required time.



[If the prosecutor has proven that it is more likely than not that the

defendant was outside of California for a period of time, you must not

include that period [up to three years] in determining whether the

prosecution began on time.]



BENCH NOTES



Instructional Duty



It is an open question as to whether the statute of limitations is an

affirmative defense, which is forfeited if a defendant fails to raise it

before or at trial, or if it is a jurisdictional issue, which can be

raised at any time. (People v. Cowan (1996) 14 Cal.4th 367, 374

[addressing the issue of whether a defendant can knowingly waive the

statute of limitations and plead guilty to a lesser time-barred

offense].) If the defendant does raise it at trial, general

instructional principles mandate that the court has a sua sponte duty to

instruct on it if the defendant is relying on such a defense or there is

substantial evidence supporting it. (See generally People v. Stewart

(1976) 16 Cal.3d 133, 140 [discussing duty to instruct on defenses].)



The state has the burden of proving by a preponderance of the evidence

that the prosecution is not barred by the statute of limitations.

(People v. Crosby (1962) 58 Cal.2d 713, 725; People v. Zamora (1976) 18

Cal.3d 538, 565, fn 27.)



For most crimes, the statute begins to run when the offense is

committed. If the crime is a fraud-related offense and included in

Penal Code section 803 the statute begins to run after the completion

of or discovery of the offense, whichever is later. (Pen. Code, §§

801.5, 803.) Courts interpreting the date of discovery provision have

imposed a due



{99}



diligence requirement on investigative efforts. (Zamora, supra, 18

Cal.3d at p. 561; People v. Lopez (1997) 52 Cal.App.4th 233, 246.) If

one of the crimes listed in Section 803 is at issue the court should

instruct using the "discovery" language.



If there is a factual issue about when the prosecution started, the

court should instruct that the prosecution begins when (1) an

information or indictment is filed, (2) a complaint is filed charging a

misdemeanor or infraction, (3) a case is certified to superior court, or

(4) an arrest warrant or bench warrant is issued describing the

defendant with the same degree of particularity required for an

indictment, information, or complaint. (Pen. Code, § 804.)



Limitation Periods



No limitations period (Pen. Code, § 799):



Embezzlement of public funds and crimes punishable by death or by life

imprisonment.



Six-year period (Pen. Code, § 800):



Felonies punishable for eight years or more, unless otherwise specified

by statute.



Five-year period (Pen. Code, § 801.6):



All other crimes against elders and dependent adults.



Four-year period (Pen. Code, §§ 801.5, 803(c)):



Fraud, breach of fiduciary obligation, theft, or embezzlement upon an

elder or dependent adult, and misconduct in office.



Three-year period (Pen. Code, § 801):



All other felonies, unless otherwise specified by statute. Note: "If

the offense is an alternative felony/misdemeanor `wobbler' initially

charged as a felony, the three-year statute of limitations applies,

without regard to the ultimate reduction to a misdemeanor after the

filing of the complaint." (People v. Mincey (1992) 2 Cal.4th 408, 453.)



Two-year period (Pen. Code, § 802(b) & (c)):



Misdemeanors committed upon a minor under the age of 14 and

misdemeanors under Business and Professions Code section 729.



One-year period (Pen. Code, § 802(a)):



Misdemeanors. Note: "If the initial charge is a felony but the

defendant is convicted of a necessarily included misdemeanor, the

one-year period for misdemeanors applies." (People v. Mincey (1992) 2

Cal.4th 408, 453; Pen. Code, § 805(b); see also 1 Witkin & Epstein,

Cal. Criminal Law (2d ed. 1988) Defenses, § 371, p. 425.)



{100}



AUTHORITY



Instructional Requirements » Pen. Code, § 799 et seq.; People v. Stewart

(1976) 16 Cal.3d 133, 140.



Tolling the Statute » Pen. Code, § 803.



Burden of Proof » People v. Lopez (1997) 52 Cal.App.4th 233, 250; People

v. Zamora (1976) 18 Cal.3d 538, 565; People v. Crosby (1962) 58 Cal.2d

713, 725.



RELATED ISSUES



Computation of Time



To determine the exact date the statute began to run, exclude the day

the crime was completed. (People v. Zamora (1976) 18 Cal.3d 538, 560.)



Burden of Proof



At trial, the prosecutor bears the burden of proving by a preponderance

of the evidence that the prosecution began within the required time.

However, at a pre-trial motion to dismiss, the defendant has the burden

of proving that the statute of limitations has run as a matter of law.

(People v. Lopez (1997) 52 Cal.4th 233, 249-51.) The defendant is

entitled to prevail on the motion only if there is no triable issue of

fact. (Id. at p. 249.)



Offense Completed



When an offense continues over a period of time, the statutory period

usually does not begin until after the last overt act or omission

occurs. (People v. Zamora (1976) 18 Cal.3d 538, 548 [last act of

conspiracy to burn insured's property was when fire was ignited and

crime completed; last act of grand theft was last insurance payment].)



Waiving the Statute of Limitations



A defendant may affirmatively waive the statute of limitations. (People

v. Cowan (1996) 14 Cal.4th 367, 371 [defendant allowed to waive statute

of limitations but waiver had to be express, informed, and knowing

relinquishment of right, and plead guilty to voluntary manslaughter in

order to avoid prosecution for the more serious murder charges].)

Distinguishing between an express waiver and "waiver in the sense of

forfeiture," Cowan left open the question of whether the statute of

limitations in criminal cases is an affirmative defense, which is

forfeited if a defendant fails to raise it before or at trial. (Id. at

pp. 372-74.)



Felony Murder



Felony-murder charges and felony-murder special circumstances

allegations may be filed even though the statute of limitations has run

on the underlying felony. (People v. Morris



{101}



(1988) 46 Cal.3d 1, 14-18, disapproved of on other grounds in In re

Sassounian (1995) 9 Cal.4th 535.)



Revival of Cause of Action



Penal Code section 803, subdivisions (f)(1) and (g)(1), provides for the

revival of causes of action previously barred by statute for specified

sex crimes against minors, subject to certain time and reporting

conditions. (See People v. Frazer (1999) 21 Cal.4th 737, 754-64

[application of § 803(g) not a violation of an ex post facto law].)



{102}



690. Insanity: Determination, Effect of Verdict



You have found the defendant guilty of ______ [insert crime]. Now you

must decide whether (he/she) was legally insane when (he/she) committed

the crime(s).



The burden is on the defendant to prove that it is more likely than not

that (he/she) was legally insane when (he/she) committed the crime(s).



The defendant was legally insane if:



1. When (he/she) committed the crime(s), (he/she) had a mental disease

or defect.



AND



2. As a result, (he/she) did not know or understand the nature and

quality of (his/her) act or did not know or understand that (his/her)

act was morally or legally wrong.



The following do not qualify as a mental disease or defect for purposes

of an insanity defense: personality disorder, adjustment disorder,

seizure disorder, and an abnormality of personality or character made

apparent only by a series of criminal or antisocial acts.



[Special rules apply to an insanity defense involving drugs or alcohol.

Addiction to or abuse of drugs or intoxicants, by itself, does not

qualify as legal insanity. This is true even if the intoxicants cause

organic brain damage or a settled mental defect or disorder which lasts

after the immediate effects of the intoxicants have worn off. Likewise,

a temporary mental condition caused by the recent use of drugs or

intoxicants is not legal insanity.]



[If the defendant suffered from a settled mental condition caused by the

long term use of drugs or intoxicants, that settled mental condition

combined with another mental disease or defect may qualify as legal

insanity.]



You may consider any evidence that the defendant had a mental disease or

defect before the commission of the crime. If you are satisfied that

(he/she) had a mental disease or defect before (he/she) committed the

crime, you may conclude that (he/she) suffered from that same condition

when (he/she) committed the crime. You must still decide whether that

mental disease or defect constitutes legal insanity.



{103}



[If you find the defendant was legally insane at the time of (his/her)

crime, (he/she) will not be released from custody until a court finds

(he/she) qualifies for release under California law. Until that time

(he/she) will remain in a mental hospital or outpatient treatment

program, if appropriate. (He/She) may not, generally, be kept in a

mental hospital or outpatient program longer than the maximum sentence

available for (his/her) crime[s]. If the state requests additional

confinement beyond the maximum sentence, the defendant will be entitled

to a new sanity trial before a new jury. Your job is only to decide if

the defendant was legally sane or insane at the time of the crime[s].

You must not speculate as to whether (he/she) is currently sane or may

be found sane in the future. You must not let any consideration about

where the defendant may be confined, or for how long, affect your

decision in any way.]



If, after consideration of all the evidence, all 12 of you conclude the

defendant has proven that it is more likely than not that (he/she) was

legally insane when (he/she) committed the crime[s], you must return a

verdict of not guilty by reason of insanity.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on insanity when the

defendant has entered a plea of not guilty by reason of insanity. (Pen.

Code, § 25.) The court should give the first bracketed paragraph when

the sole basis of insanity is the defendant's use of intoxicants. (Pen.

Code, § 25.5; People v. Robinson (1999) 72 Cal.App.4th 421, 427-28.) If

the defendant's use of intoxicants is not the sole basis or causative

factor of insanity, but rather one factor among others, the second

bracketed paragraph should be given. (Id. at p. 430 fn. 5.)



There is no sua sponte duty to inform the jury that an insanity verdict

would result in the defendant's commitment to a mental hospital.

However, this instruction must be given on request. (People v. Moore

(1985) 166 Cal.App.3d 540, 556; People v. Kelly (1992) 1 Cal.4th 495,

538.)



AUTHORITY



Instructional Requirements » Pen. Code, §§ 25, 25.5; People v. Skinner

(1985) 39 Cal.3d 765.



Burden of Proof » Pen. Code, § 25(b).



{104}



Excluded Conditions » Pen. Code, § 25.5.



Long-Term Substance Use » People v. Robinson (1999) 72 Cal.App.4th 421,

427.



Anti-social Acts » People v. Fields (1983) 35 Cal.3d 329, 368-72; People

v. Stress (1988) 205 Cal.App.3d 1259, 1271.



Commitment to Hospital » Pen. Code, §§ 1026, 1026.5; People v. Moore

(1985) 166 Cal.App.3d 540, 556; People v. Kelly (1992) 1 Cal.4th 495,

538.



RELATED ISSUES



Bifurcated Proceedings



The defendant has a right to bifurcated proceedings on the questions of

sanity and guilt. (Pen. Code, § 1026.) When the defendant enters both a

"not guilty" and a "not guilty by reason of insanity" plea, the

defendant must be tried first with respect to guilt. If the defendant is

found guilty, he or she is then tried with respect to sanity. The

defendant may waive bifurcation and have both guilt and sanity tried at

the same time. (Pen. Code, § 1026(a).)



Temporary Insanity



The defendant's insanity does not need to be permanent in order to

establish a defense. The relevant inquiry is the defendant's mental

state at the time the offense was committed. (People v. Kelly (1973) 10

Cal.3d 565, 577.)



Wrong - Moral and Legal



The wrong contemplated by the two-part insanity test refers to both the

legal wrong and the moral wrong. If the defendant appreciates that his

or her act is criminal but does not think it is morally wrong, he or she

may still be criminally insane. (See People v. Skinner (1985) 39 Cal.3d

765, 777-84; see also People v. Stress (1988) 205 Cal.App.3d 1259,

1271-74.)



Extension of Commitment



The test for extending a person's commitment is not the same as the test

for insanity. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d

477, 490.) The test for insanity is whether the accused "was incapable

of knowing or understanding the nature and quality of his or her act or

of distinguishing right from wrong at the time of the commission of the

offense." (Pen. Code, § 25(b); People v. Skinner (1985) 39 Cal.3d 765.)

In contrast, the standard for recommitment under Penal Code section

1026.5, subdivision (b), is whether a defendant, "by reason of a mental

disease, defect, or disorder represents a substantial danger of physical

harm to others." (People v. Superior Court, supra, 233 Cal.App.3d at pp.

489-90; People v. Wilder (1995) 33 Cal.App.4th 90, 99.)



{105}



Series 700 - Homicide



Homicide and Justification



700. Homicide: General Principles



701. Justifiable Homicide: Self-Defense or Defense of Another



Murder



720. Murder with Malice Aforethought



721. Murder: Degrees



725. Felony Murder: First Degree



726. Murder by Mayhem



727. Felony Murder: Second Degree



730. Malice versus Felony Murder



Manslaughter



735. Voluntary Manslaughter: Imperfect Self-Defense



736. Voluntary Manslaughter: Heat of Passion



Task Force Comments on this Series



Because homicide is a complex area of law, the task force decided on two

innovations to help the jury understand the legal principles they must

apply when multiple theories or crimes are at issue. First, an

introductory instruction, called "General Principles," has been provided

which explains what homicide is, what defenses are available, and what

different types and degrees of crimes exist within homicide. The task

force believes that providing the jurors with this overview will help

them understand the relationships between the specific, more nuanced

instructions that follow.



Second, the task force organized the instructions to reflect the order

the jury would decide the issues in a case and provided "linking"

instructions where necessary to connect the instructions. After the

"General Principles" instruction, and as appropriate to the case, the

defenses of excuse or justification are explained to the jury. The task

force felt that defenses should come next because the jury would first

decide whether the defendant should be exonerated before addressing

culpability for specific crimes. A second advantage to instructing on

defenses first is that the jury is educated on these concepts before

discussing them in their "imperfect" forms as mitigating factors

supporting convictions for lesser offenses. After defenses, the

appropriate crimes and degrees of crimes are explained, beginning with

first degree murder and proceeding through involuntary manslaughter. If

more than one theory for a charge is relied on, an instruction

explaining the differences between the theories has been provided. (See

instruction 730, Malice versus Felony Murder.) "Link" or "comparative"

instructions will also be provided explaining the differences between

degrees and types of homicide crimes.



{106}



Homicide 700. Homicide: General Principles



The defendant is charged with murder. Before I continue, I want to

explain some1 general principles about the law of homicide.



Homicide is the killing of a human being by another. A killing is either

lawful or unlawful. If a person kills with a legally valid excuse or

justification, the killing is lawful and he or she has not committed a

crime. If there is no legally valid excuse or justification, the killing

is unlawful and, depending on the circumstances, the person is guilty of

either murder or manslaughter. You must decide whether the defendant

killed unlawfully and, if so, the specific crime[s] (he/she) committed.



I will now instruct you in more detail on what is a legally permissible

excuse or justification. I will also instruct you on the different types

of murder [and manslaughter] that are in question in this case and

explain the differences between the crimes and degrees.



______



BENCH NOTES



Instructional Duty



This instruction should be given if there are multiple theories of

homicide or evidence supporting justification or excuse, as a way of

introducing the jury to the law of homicide.



AUTHORITY



Homicide Defined » People v. Antick (1975) 15 Cal.3d 79, 87.



Justification or Excuse » Pen. Code, § 189.5; People v. Frye (1992) 7

Cal.App.4th 1148, 1154-55.



COMMENTARY



The committee decided that a short introduction on the law of homicide

was worthwhile in order to educate the jury at the outset on basic

principles governing a complicated body of law. By giving the jury a

simple framework, this instruction will help the jurors understand the

rest of the instructions. Although "homicide" is a classic legal term,

the committee decided to use the word because it appears to now be a

part of lay vocabulary and therefore easily recognizable by jurors.



{107}



701. Justifiable Homicide: Self-defense or Defense of Another



The defendant is not guilty of (murder/[or] manslaughter) if (he/she)

was justified in killing the other person in (self-defense/defense of

another). The defendant acted in lawful (self-defense/defense of

another) if:



1. The defendant believed that (he/she /______ [insert name of third

party]) was (being threatened with death or great bodily

injury/resisting the commission of ______ [insert forcible and atrocious

crime]).



2. (He/She) believed the threatened harm was immediate.



3. (He/She) believed that the use of deadly force was necessary to

defend against the threat.



AND



4. The defendant's beliefs were reasonable.



Fear of future harm, no matter how great or how likely the harm, is not

sufficient. The defendant's fear must be of (immediate danger to life or

of great bodily injury/ immediate danger of the commission of a forcible

and atrocious crime.)



The circumstances must be sufficient to make a reasonable person

fearful, and the defendant must have acted only under the influence of

such fears.



When deciding whether the defendant's belief in the need for defense was

reasonable, consider all the circumstances as they were known to and

appeared to the defendant and consider what would appear necessary to a

reasonable person in a similar situation with similar knowledge. In

other words, consider what a reasonable person would have done who was

in the same position as the defendant.



[The defendant's belief that (he/she was threatened may be reasonable

even if (he/she) relied on information that was not true. However, the

defendant must actually and reasonably have believed that information.]



[If the deceased threatened or harmed the defendant in the past, the

defendant would be justified in acting more quickly or taking stronger

self-defense measures than if there had been no earlier threats or

harm.]



[If the defendant knew that the deceased had threatened or assaulted

others in the past, the defendant would be justified in acting more

quickly or taking stronger self defense measures than if (he/she) did

not know of such earlier conduct.]



{108}



[If the defendant received threats from a third party that (he/she)

reasonably associated with the victim, you may consider those threats in

deciding whether the defendant was justified in acting in self-defense.

Such threats alone do not establish self-defense. There must also be

evidence that the defendant feared immediate harm.]



The prosecutor must prove beyond a reasonable doubt that the defendant

was not justified in killing the other person in (self-defense/defense

of another). If you have a reasonable doubt that the killing was in

(self-defense/defense of another), you must find the defendant not

guilty [of] [murder] [and] [manslaughter].



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on self-defense when "it

appears that the defendant is relying on such a defense, or if there is

substantial evidence supportive of such a defense and the defense is not

inconsistent with the defendant's theory of the case." (People v.

Breverman (1998) 19 Cal.4th 142, 156 [addressing duty to instruct on

voluntary manslaughter as lesser included offense, but also discussing

duty to instruct on defenses generally]; see also People v. Lemus (1988)

203 Cal.App.3d 470, 478 [if substantial evidence of self-defense exists,

court must instruct sua sponte and let jury decide credibility of

witnesses].)



If there is substantial evidence of self-defense that is inconsistent

with the defendant's testimony, the court must ascertain whether the

defendant wants an instruction on selfdefense. (Breverman, supra, 19

Cal.4th at p. 156.) The court is then required to give the instruction

if the defendant so requests. (People v. Elize (1999) 71 Cal.App.4th

605, 611- 15.) The court must also give the instruction when the

defendant simply asks for it, even if it was unsolicited by the court.

(Id. at p. 615.)



Forcible and Atrocious Crimes



If the defendant's theory of self-defense was that he or she was

resisting the commission of murder, mayhem, rape, or robbery, the court

should insert the relevant crime in the blank provided in the first

requirement, and instruct using the "forcible and atrocious crime"

alternative. (See People v. Ceballos (1974) 12 Cal.3d 470, 478-79.) In

all other cases, the court should instruct using the "death or great

bodily injury" alternative. (See Commentary section below.)



{109}



Related Instructions



Instruction ___, Justifiable Homicide: Defense of Habitation



Instruction ___, Justifiable Homicide: Peace Officers



Instruction ___, Justifiable Homicide: Preserving the Peace



Instruction 735, Voluntary Manslaughter: Imperfect Self-Defense



AUTHORITY



Justifiable Homicide » Pen. Code, §§ 197-199.



Lawful Resistance » Pen. Code, §§ 692, 693, 694.



Elements » People v. Humphrey (1996) 13 Cal.4th 1073, 1082.



Imminence » People v. Aris (1989) 215 Cal.App.3d 1178, 1187.



Fear » Pen. Code, § 198.



Reasonable Belief » Humphrey, supra, 13 Cal.4th at p. 1082; People v.

Clark (1982) 130 Cal.App.3d 371, 377.



Burden of Proof » People v. Banks (1976) 67 Cal.App.3d 379, 383-84.



COMMENTARY



Penal Code section 197, subdivision 1 provides that self-defense may be

used in response to threats of death or great bodily injury, or to

resist the commission of a felony. (Pen. Code, § 197(1).) However, in

People v. Ceballos (1974) 12 Cal.3d 470, 477-79, the court held that

although the latter part of section 197 appears to apply when a person

resists the commission of any felony, it should be read in light of

common law principles that require the felony to be "some atrocious

crime attempted to be committed by force." (Id. at p. 478.) This

instruction is therefore designed to be given when self-defense is used

in response to threats of great bodily injury or death or when

self-defense is used to resist the commission of forcible and atrocious

crimes.



Forcible and atrocious crimes are generally those crimes whose

character and manner reasonably create a fear of death or serious

bodily harm. (Ceballos, supra, 12 Cal.3d at p. 479.) The following

crimes have been deemed forcible and atrocious as a matter of law:

murder, mayhem, rape, and robbery. (Id. at p. 478.) If the defendant is

asserting that he or she was resisting the commission of one of these

specific felonies, the court should instruct using the "forcible and

atrocious crime" alternative. In all other cases, the court should

instruct using the "death or great bodily injury" alternative. Because

the "death or great bodily injury" alternative encompasses the general

definition of forcible and atrocious crimes the committee believed that

all other felonies and crimes would fall under this alternative and

that it was redundant to give a specific definition of forcible and

atrocious crimes in the instruction.



{110}



RELATED ISSUES



Imperfect Self-defense



Most courts hold that an instruction on imperfect self-defense is

required in every case in which a court instructs on perfect

self-defense. If there is substantial evidence of a defendant's belief

in the need for self-defense, there will always be substantial evidence

to support an imperfect self-defense instruction because the

reasonableness of that belief will always be at issue. (People v. Ceja

(1994) 26 Cal.App.4th 78, 85-86; People v. DeLeon (1997) 10 Cal.App.4th

815, 824.) The court in People v. Rodriguez disagreed, however, and

found that an imperfect self-defense instruction was not necessary when

defendant's version of the crime "could only lead to an acquittal based

on justifiable homicide," and when the prosecutor's version could only

lead to a conviction of first degree murder. (People v. Rodriguez (1992)

53 Cal.App.4th 1250, 1275; see also People v. Williams (1992) 4 Cal.4th

354, 362 [in rape prosecution, no mistake-of-fact instruction was

required where two sides gave wholly divergent accounts with no middle

ground to support a mistake-of-fact instruction].)



No Duty to Retreat From Attack



A person who is attacked is not required to retreat, but may stand his

or her ground and defend against the attack, even though he or she might

have gained safety through flight. (People v. Hughes (1951) 107

Cal.App.2d 487, 493.) There is no sua sponte duty to instruct on this

principle, although such an instruction must be given upon request if

sufficient evidence warrants it. (People v. Hatchett (1942) 56

Cal.App.2d 20, 22; see instruction __, No Duty to Retreat from Attack.)



No Defense for Initial Aggressor



An aggressor whose victim fights back in self-defense may not invoke the

doctrine of self-defense against the victim's legally justified acts.

(In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) If the aggressor

attempts to break off the fight and communicates this to the victim, but

the victim continues to attack, the aggressor may use self-defense

against the victim to the same extent as if he or she had not been the

initial aggressor. (Pen. Code, § 197(3); People v. Trevino (1988) 200

Cal.App.3d 874, 879; see instruction __, Initial Aggressor.)



Transferred Intent Applies



"[T]he doctrine of self-defense is available to insulate one from

criminal responsibility where his act, justifiably in self-defense,

inadvertently results in the injury of an innocent bystander." (People

v. Matthews (1979) 91 Cal.App.3d 1018, 1024; see also People v. Curtis

(1994) 30 Cal.App.4th 1337, 1357.) There is no sua sponte duty to

instruct on this principle, although such an instruction must be given

upon request when substantial evidence supports it. (Matthews, supra, 91

Cal.App.3d at p. 1025; see instruction __, Transferred Intent.)



{111}



720. Murder With Malice Aforethought



The defendant is charged [in Count __] with (first degree/second degree)

murder. You may find the defendant guilty of murder only if the

prosecutor has proven beyond a reasonable doubt that:



1. The defendant caused the death of another person [or fetus].



[AND]



2. (He/She) caused the death by an act committed with malice

aforethought.



[AND



3. The killing was committed without excuse or justification.]



The defendant acted with malice aforethought if either:



A. (He/She) intended to kill [that is, acted with express malice].



OR



B. (He/She) intentionally did an act that (he/she) knew was highly

dangerous to human life and acted with conscious disregard of that

danger [that is, acted with implied malice].



Malice aforethought does not require hatred or ill will toward the

victim.



[The defendant caused the death of another person if the death was the

direct, natural, and probable consequence of the defendant's actions.]

[Legally, there may be more than one cause of death. You may not find

the defendant guilty unless (his/her) act was a substantial factor in

causing the death.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on the first two elements of

the crime. If there is evidence of excuse or justification, the court

has a sua sponte duty to include the third, bracketed element in the

instruction. (People v. Frye (1992) 7 Cal.App.4th 1148, 1155-56.)



If causation is at issue, the court has a sua sponte duty to instruct

on proximate cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567,

590-91.) If the evidence indicates that



{112}



there was only one cause of death, the court should give the "direct,

natural, and probable" language in the first sentence of the bracketed

paragraph on causation. If there is evidence of multiple causes of

death, the court should give the "substantial factor" definition in the

second sentence. (See People v. Autry (1995) 37 Cal.App.4th 351, 363;

People v. Pike (1988) 197 Cal.App.3d 732, 747.)



Related Instructions



If the defendant is charged with first degree murder, give this

instruction and instruction 721, Murder: Degrees. If the defendant is

charged with second degree murder, no other instruction need be given.



If the defendant is also charged with first or second degree felony

murder, instruct on those crimes and give instruction 730, Malice

Versus Felony Murder.



If there is an issue regarding a superseding or intervening cause, give

any one of the following instructions on causation, depending upon the

facts:



Instruction __, Contributory Negligence.



Instruction __, Improper Medical Treatment.



Instruction __, Victim's Preexisting Condition.



AUTHORITY



Elements » Pen. Code, § 187.



Malice » Pen. Code, § 188; People v. Dellinger (1989) 49 Cal.3d 1212,

1217-22; People v. Nieto Benitez (1992) 4 Cal.4th 91, 103-15.



Causation » People v. Roberts (1992) 2 Cal.4th 271, 315-21.



Ill-will Not Required for Malice » People v. Sedeno (1974) 10 Cal.3d

703, 722, overruled on other grounds in People v. Flannel (1979) 25

Cal.3d 668, 684, fn. 12.



COMMENTARY



The committee decided that the distinction between express and implied

malice is not necessary in most cases but has included the language in

brackets, to be given at the court's discretion. Penal Code section 22,

which addresses admissibility of voluntary intoxication evidence, does

rely on the distinction between express and implied malice. Section 22

only permits such evidence to be considered on the question whether

defendant formed express, as opposed to implied, malice required for

murder. In such a case, the court may wish to use the terms express and

implied.



LESSER INCLUDED OFFENSES



{113}



Voluntary Manslaughter » Pen. Code, § 192(a).



Involuntary Manslaughter » Pen. Code, § 192(b).



Vehicular Manslaughter » Pen. Code, § 192(c).



Gross Vehicular Manslaughter While Intoxicated » Pen. Code, § 191.5.



Attempted Murder » Pen. Code, §§ 663, 189.



RELATED ISSUES



Causation -- Foreseeability



Authority is divided on whether a causation instruction should include

the concept of foreseeability. (See People v. Autrey (1995) 37

Cal.App.4th 351, 362-63; People v. Temple (1993) 19 Cal.App.4th 1750,

1756 [refusing defense-requested instruction on foreseeability in favor

of standard pattern causation instruction]; but see People v. Gardner

(1995) 37 Cal.App.4th 473, 483 [suggesting the following language be

used in a causation instruction: "[t]he death of another person must be

foreseeable in order to be the natural and probable consequence of the

defendant's act"].) It is clear, however, that it is error to instruct a

jury that foreseeability is immaterial to causation. (People v. Roberts

(1992) 2 Cal.4th 271, 315 [error to instruct a jury that when deciding

causation it "[w]as immaterial that the defendant could not reasonably

have foreseen the harmful result].)



{114}



721. Murder: Degrees



Murder is divided into two degrees: first and second. If you conclude

the defendant committed a murder, you must decide the degree. You may

find the defendant guilty of first degree murder only if the prosecutor

has proven beyond a reasonable doubt that:



[A. Premeditation and Deliberation



The defendant premeditated and deliberated before committing the murder.

The defendant premeditated and deliberated if he or she carefully

weighed the considerations for and against his or her choice to kill

before acting and, knowing the consequences, decided to kill.



The length of time the person spends considering whether to kill does

not alone determine whether the killing is deliberate and premeditated.

The amount of time required for deliberation and premeditation may vary

from person to person and according to the circumstances. A decision to

kill made rashly, impulsively, or without careful thought and weighing

of the consequences is not premeditated and deliberated. On the other

hand, a cold, calculated decision to kill can be arrived at quickly.

What is important is the extent of the reflection.]



[B. Torture



The defendant murdered the victim by torture. The defendant murdered by

torture if:



1. (He/She) deliberately and with premeditation intended to inflict

extreme and prolonged pain on the victim.



AND



2. (He/She) intended to inflict such pain on the victim for the

calculated purpose of revenge, extortion, persuasion, or any other

sadistic reason.]



[C. Lying in Wait



The defendant murdered the victim by means of lying in wait. The

defendant lay in wait if:



1. (He/She) concealed (his/her) purpose from the victim.



2. (He/She) waited and watched for an opportunity to act.



3. (He/She) then made a surprise attack on the victim from a position of

advantage.



AND



4. (He/She) intended to take the victim by surprise to commit the act[s]

that resulted in the murder.



{115}



[A person may conceal his or her purpose even though the victim is aware

of the person's presence. [The concealment may be accomplished by ambush

or some other secret design.]]



[D. Destructive Device



The defendant murdered the victim using a destructive device or

explosive.



[An explosive is any substance, or combination of substances, (1) whose

main or common purpose is to detonate or rapidly combust and (2) which

is capable of a relatively instantaneous or rapid release of gas and

heat.]



[An explosive is also any substance whose main purpose is to be combined

with other substances to form a substance that is capable of a

relatively instantaneous or rapid release of gas and heat.]



[A ______ [insert type of destructive device from Pen. Code, § 12301] is

a destructive device.]



[A ______ [insert type of explosive from Health & Saf. Code, § 12000] is

an explosive.]]



[E. Penetrating Ammunition



The defendant murdered the victim by knowing use of ammunition designed

primarily to penetrate metal or armor.]



[F. Discharge From Vehicle



The defendant murdered the victim by firing a weapon from a vehicle in

that:



1. The defendant fired a weapon from a vehicle.



2. (He/She) intentionally fired at another person outside the vehicle.



AND



3. (He/She) intended to kill.]



[G. Poison



The defendant murdered the victim using poison.



[Poison is a substance, applied externally or taken internally, that

kills by its own inherent qualities.]]



All other murders are in the second degree.



{116}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Before giving this instruction, the court must

give instruction 720, Murder with Malice Aforethought. Depending upon

the theory of first degree murder relied upon by the prosecutor,

instruct using the appropriate alternative A through G.



AUTHORITY



Types of Statutory First Degree Murder » Pen. Code, § 189.



Premeditation and Deliberation Defined » People v. Anderson (1970) 70

Cal.2d 15, 26-27; People v. Bender (1945) 27 Cal.2d 164, 183-84; People

v. Daugherty (1953) 40 Cal.2d 876, 901-02.



Torture Requirements » People v. Pensinger (1991) 52 Cal.3d 1210, 1239;

People v. Bittaker (1989) 48 Cal.3d 1046, 1101, habeas corpus granted in

part on other grounds in In re Bittaker (1997) 55 Cal.App.4th 1004;

People v. Wiley (1976) 18 Cal.3d 162, 168-72.



Lying in Wait Requirements » People v. Stanley (1995) 10 Cal.4th 764,

794; People v. Ceja (1993) 4 Cal.4th 1134, 1139; People v. Webster

(1991) 54 Cal.3d 411, 448; People v. Laws (1993) 12 Cal.App.4th 786,

794-95.



Destructive Device Defined » Pen. Code, § 12301.



Explosive Defined » Health & Saf. Code, § 12000; People v. Clark (1990)

50 Cal.3d 583, 604.



Poison Defined » People v. Van Deleer (1878) 53 Cal. 147, 149.



LESSER INCLUDED OFFENSES



Murder » Pen. Code, § 187.



Voluntary Manslaughter » Pen. Code, § 192(a).



Involuntary Manslaughter » Pen. Code, § 192(b).



Vehicular Manslaughter » Pen. Code, § 192(c).



Gross Vehicular Manslaughter While Intoxicated » Pen. Code, § 191.5.



Attempted First Degree Murder » Pen. Code, §§ 663, 189.



Attempted Murder » Pen. Code, §§ 663, 187.



RELATED ISSUES



Discharge From a Vehicle -- Vehicle Does Not Have to Be Moving



{117}



Penal Code section 189 does not require the vehicle to be moving in

order to constitute a drive-by shooting. (Pen. Code, § 189; see also

People v. Bostick (1996) 46 Cal.App.4th 287, 291 [finding vehicle

movement is not required in context of enhancement for discharging

firearm from motor vehicle under Pen. Code, § 12022.55].)



Premeditation and Deliberation -- Anderson Factors Evidence in any

combination from the following categories suggests premeditation and

deliberation: (1) events prior to the murder that indicate planning,

(2) motive, specifically evidence of a relationship between the victim

and the defendant, and (3) method of the killing that is particular and

exacting and evinces a preconceived design to kill. (People v. Anderson

(1970) 70 Cal.2d 15, 26-27.) Although these categories have been relied

on to decide whether premeditation and deliberation are present, an

instruction that suggests that each of these factors must be found in

order to find deliberation and premeditation is not proper. (People v.

Lucero (1988) 44 Cal.3d 1006.) Anderson also noted that the brutality

of the killing alone is not sufficient to support a finding that the

killer acted with premeditation and deliberation. For example, the

infliction of multiple acts of violence on the victim without any other

evidence indicating premeditation will not support a first degree

murder conviction. (Anderson, supra, 70 Cal.2d at pp. 24-25.)



Premeditation and Deliberation -- Heat of Passion Provocation Provocation

may reduce murder from first to second degree. (People v. Thomas (1945)

25 Cal.2d 880, 903 [provocation raised reasonable doubt about the idea

of premeditation or deliberation, "leaving the homicide as murder of

the second degree; i.e., an unlawful killing perpetrated with malice

aforethought but without premeditation and deliberation"].) There is,

however, no sua sponte duty to instruct the jury on this issue because

provocation in this context is a defense to the element of

deliberation, not an element of the crime, as it is in the manslaughter

context. (People v. Middleton (1997) 52 Cal.App.4th 19, 33.)



Torture -- Causation



The finding of murder by torture encompasses the totality of the brutal

acts and circumstances that led to a victim's death. "The acts of

torture may not be segregated into their constituent elements in order

to determine whether any single act by itself caused the death; rather,

it is the continuum of sadistic violence that constitutes the torture

[citation]." (People v. Proctor (1993) 4 Cal.4th 499, 530-31.)



Torture -- Instruction on Voluntary Intoxication



"A court should instruct a jury in a torture-murder case, when evidence

of intoxication warrants it, that intoxication is relevant to the

specific intent to inflict cruel suffering." (People v. Pensinger (1991)

52 Cal.3d 1210, 1242.)



Torture -- Pain Not an Element



{118}



All that is required for first degree murder by torture is the

calculated intent to cause pain for the purpose of revenge, extortion,

persuasion, or any other sadistic purpose. There is no requirement that

the victim actually suffered pain. (People v. Pensinger (1991) 52

Cal.3d 1210, 1239.)



Torture-Premeditated Intent to Inflict Pain



Although the court did not address an instructional duty on this point,

in its analysis of the sufficiency of the evidence of intent to inflict

extreme pain, the court applied the guidelines established in People v.

Anderson (1970) 70 Cal.2d 15, 26-27 to determine premeditation and

deliberation. (People v. Mincey (1992) 2 Cal.4th 408, 434-36.)



Lying in Wait-Length of Time Equivalent to Premeditation and

Deliberation



In People v. Stanley (1995) 10 Cal.4th 764, 794, the court approved this

instruction regarding the length of time a person lies in wait: "[T]he

lying in wait need not continue for any particular time, provided that

its duration is such as to show a state of mind equivalent to

premeditation or deliberation."



{119}



725. Felony Murder: First Degree



The defendant is charged [in Count __] with first degree murder, and

the1 prosecutor argues that he is guilty under a theory of felony

murder.



You may find the defendant guilty of first degree felony murder only if

the prosecutor has proven beyond a reasonable doubt that:



1. The defendant committed [or attempted to commit] ______ [insert

felony from Pen. Code, § 189, except Mayhem].



AND



2. During the commission [or attempted commission] of ______ [insert

felony], another person was (killed/fatally injured).



The defendant committed [or attempted to commit] ______ [insert felony]

if:



[Insert the numbered elements of the underlying felony or attempted

felony]



A person may be guilty of felony murder even if the killing was

accidental or negligent.



[The defendant must have intended to commit the felony before or at the

time of the killing.]



[A killing occurs during the commission or attempted commission of a

felony when the fatal injury is inflicted during the felony, even if the

victim does not die immediately.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. The court also has a sua sponte duty to instruct

on the elements of the underlying felony. (People v. Cain (1995) 10

Cal.4th 1, 36.)



If the underlying felony is mayhem, give instruction 726, Murder by

Mayhem. If the victim is fatally injured and dies at a later time,

instruct with "fatally injured" instead of "killed" in the second

element.



{120}



The other felonies that support a charge of first degree felony murder

are arson, rape, carjacking, robbery, burglary, kidnapping, train

wrecking, sodomy, lewd and lascivious acts on a child, oral copulation,

and penetration by foreign object. (See Pen. Code, § 189.)



If there is evidence that the defendant did not form the intent to

commit the felony until after the homicide, the defendant is entitled

to an instruction pinpointing this issue. (People v. Hudson (1955) 45

Cal.2d 121, 124-27.)



A person is not guilty of felony murder for killings committed during

the felony by a person other than the defendant or his or her

accomplice. (People v. Washington (1965) 62 Cal.2d 777, 782-83; People

v. Caldwell (1984) 36 Cal.3d 210, 216; see also People v. Gardner

(1995) 37 Cal.App.4th 473, 477.) Liability may be imposed, however,

under the provocative act doctrine. (See instruction __, Provocative

Act Doctrine.)



Related Instructions



If aiding and abetting is relied on, the court should give instruction

___, Felony Murder: Aiding and Abetting. (See People v. Pulido (1997) 15

Cal.4th 713; People v. Esquivel (1994) 28 Cal.App.4th 1386; People v.

Anderson (1991) 233 Cal.App.3d 1646, 1656.)



If the prosecutor is proceeding under both malice and felony murder

theories, the court should also give instruction 730, Malice versus

Felony Murder. If the prosecutor is relying only on a theory of felony

murder, no instruction on malice should be given. (See People v. Cain

(1995) 10 Cal.4th 1, 35-37 [error to instruct on malice when felony

murder only theory].)



Felony murder requires that the killing and felony occur as parts of a

continuous transaction. (People v. Whitehorn (1963) 60 Cal.2d 256, 264

[rape case].) This issue typically arises in burglary and robbery cases

where there is a question about when those crimes end for purposes of

liability for felony murder. (See instruction ___, Burglary: Complete

for Felony Murder or instruction ___, Robbery: Complete for Felony

Murder; see also People v. Pearch (1991) 229 Cal.App.3d 1282, 1299

[duty to give instruction regarding when kidnapping ends].) For a

general discussion of the issue, see People v. Stamp (1969) 2

Cal.App.3d 203, 209-11 [robbery case]; People v. Hernandez (1988) 47

Cal.3d 315, 348 [sodomy and rape case]; People v. Thompson (1990) 50

Cal.3d 134, 171-72 [case involving lewd and lascivious acts with a

child]; People v. Atkins (1982) 128 Cal.App.3d 564, 568 [comparing

special circumstances case].)



{121}



AUTHORITY



Enumerated Felonies » Pen. Code, § 189.



Intent » People v. Sears (1965) 62 Cal.2d 737, 745, overruled on other

grounds in People v. Cahill (1993) 5 Cal.4th 478, 509 fn. 17; People v.

Esquivel (1994) 28 Cal.App.4th 1386, 1396.



Continuous Transaction Requirement » People v. Whitehorn (1963) 60

Cal.2d 256, 264; People v. Hernandez (1988) 47 Cal.3d 315, 348.



Infliction of Fatal Injury » People v. Alvarez (1996) 14 Cal.4th 155,

222-23.



LESSER INCLUDED OFFENSES



Second Degree Murder » Pen. Code, § 187.



Voluntary Manslaughter » Pen. Code, § 192(a).



Involuntary Manslaughter » Pen. Code, § 192(b).



Attempted Murder » Pen. Code, §§ 663, 189.



Underlying Felony and Attempted Underlying Felony



RELATED ISSUES



Auto Burglary



Auto burglary may form the basis for a first degree felony murder

conviction. (People v. Fuller (1978) 86 Cal.App.3d 618, 622-23, 628

[noting the problems of applying the felony murder rule to a

nondangerous daytime auto burglary].)



Decedent Does Not Need to Be a Victim of the Underlying Felony



The felony murder rule does not require that the person killed be the

victim of the underlying felony. The doctrine applies if the person

killed is an accomplice (People v. Johnson (1972) 28 Cal.App.3d 653,

658), an innocent bystander (People v. Welch (1972) 8 Cal.3d 106,

117-19), or a police officer arriving on the scene (People v. Salas

(1972) 7 Cal.3d 812, 823).



Heart Attack



Felony murder has been upheld where the victim died of a heart attack

either during or after the perpetration of the felony. (People v. Stamp

(1969) 2 Cal.App.3d 203, 209-11 [after]; People v. Hernandez (1985) 169

Cal.App.3d 282, 287 [during].)



Imperfect Self-Defense



Imperfect self-defense is not a defense to felony murder because malice

aforethought, which it negates, is not an element of felony murder.

(People v. Tabios (1998) 67 Cal.App.4th 1, 6-9.)



{122}



Merger: Ireland Rule



In People v. Ireland the court held that assault could not form the

basis of a charge for second degree felony murder because the assaultive

conduct "merges" with the homicide. (People v. Ireland (1969) 70 Cal.2d

522, 539-40 [merger based on assault with a deadly weapon].) Although

merger is typically an issue in second degree felony murder, in People

v. Garrison (1989) 47 Cal.3d 746, 778, the court held that first degree

felony murder cannot be based on a burglary where the intent on entry is

to commit an assault. (For further discussion see the related issues

section under instruction 727, Felony Murder: Second Degree.)



{123}



726. Murder by Mayhem



The defendant is charged [in Count __] with first degree murder, and the

prosecutor argues that he is guilty under a theory of felony murder.



You may find the defendant guilty of first degree felony murder only if

the prosecutor has proven beyond a reasonable doubt that:



1. The defendant committed [or attempted to commit] mayhem.



2. The defendant intended to commit mayhem.



AND



3. During the commission [or attempted commission] of mayhem, another

person was (killed/fatally injured).



The defendant committed [or attempted to commit] mayhem if (he/she) did

any one of the following:



A. Unlawfully and maliciously removed a part of another person's body;



B. Disabled, disfigured or made useless another person's body part;17



OR



C. Cut or disabled the tongue, put out an eye, or slit the nose, ear, or

lip of another person.



A person may be guilty of felony murder even if the killing was

accidental or negligent.



[The defendant must have intended to commit mayhem before or at the time

of the killing.]



[A killing occurs during the commission [or attempted commission] of

mayhem when the fatal injury is inflicted during the mayhem, even if the

victim does not die  immediately.]



{124}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. The court also has a sua sponte duty to instruct

on the elements of mayhem. (People v. Cain (1995) 10 Cal.4th 1, 36.) If

the victim is fatally injured and dies at a later time, instruct with

"fatally injured" instead of "killed" in element 3.



If there is evidence that the defendant did not form the intent to

commit the felony until after the homicide, the defendant is entitled

to an instruction pinpointing this issue. (People v. Hudson (1955) 45

Cal.2d 121, 124-27)



A person is not guilty of felony murder for killings committed during

the felony by a person other than the defendant or his or her

accomplice. (People v. Washington (1965) 62 Cal.2d 777, 782-83; People

v. Caldwell (1984) 36 Cal.3d 210, 216; see also People v. Gardner

(1995) 37 Cal.App.4th 473, 477.) Liability may be imposed, however,

under the provocative act doctrine. (See instruction __, Provocative

Act Doctrine.)



Related Instructions



If aiding and abetting is relied on, the court should give instruction

___, Felony Murder: Aiding and Abetting. (See People v. Pulido (1997) 15

Cal.4th 713; People v. Esquivel (1994) 28 Cal.App.4th 1386; People v.

Anderson (1991) 233 Cal.App.3d 1646, 1656.)



If the prosecutor is proceeding under both malice and felony murder

theories, the court should also give instruction 730, Malice versus

Felony Murder. If the prosecutor is relying only on a theory of felony

murder, no instruction on malice should be given. (See People v. Cain

(1995) 10 Cal.4th 1, 35-37 [error to instruct on malice when felony

murder only theory].)



Felony murder requires that the killing and felony occur as parts of a

continuous transaction. (People v. Whitehorn (1963) 60 Cal.2d 256, 264

[rape case].) This issue typically arises in burglary and robbery cases

where there is a question about when those crimes end for purposes of

liability for felony murder. (See instruction ___, Burglary: Complete

for Felony Murder, or instruction ___, Robbery: Complete for Felony

Murder; see also People v. Pearch (1991) 229 Cal.App.3d 1282, 1299

[duty to give instruction regarding when kidnapping ends].) For a

general discussion of the issue, see People v. Stamp (1969) 2

Cal.App.3d 203, 209-11 [robbery case]; People v. Hernandez (1988) 47

Cal.3d 315, 348 [sodomy and rape case]; People v. Thompson (1990) 50

Cal.3d 134, 171-72 [case involving lewd and lascivious acts with a

child]; People v. Atkins (1982) 128 Cal.App.3d 564, 568 [comparing

special circumstances case].)



{125}



AUTHORITY



Enumerated Felonies » Pen. Code, § 189.



Intent » People v. Sears (1965) 62 Cal.2d 737, 745, overruled on other

grounds in People v. Cahill (1993) 5 Cal.4th 478, 509; People v.

Esquivel (1994) 28 Cal.App.4th 1386, 1396.



Continuous Transaction Requirement » People v. Whitehorn (1963) 60

Cal.2d 256, 264; People v. Hernandez (1988) 47 Cal.3d 315, 348.



Infliction of Fatal Injury » People v. Alvarez (1996) 14 Cal.4th 155,

222-23.



LESSER INCLUDED OFFENSES



Second Degree Murder » Pen. Code, § 187.



Voluntary Manslaughter » Pen. Code, § 192(a).



Involuntary Manslaughter » Pen. Code, § 192(b).



Attempted Murder » Pen. Code, §§ 663, 189.



Underlying Felony and Attempted Underlying Felony



COMMENTARY



The committee decided to include a separate instruction on murder by

mayhem. Unlike the other felony murders, murder by mayhem requires the

additional element of intent to commit mayhem.



RELATED ISSUES



See generally, the related issues section under instruction 725, Felony

Murder: First Degree.



{126}



727. Felony Murder: Second Degree



The defendant is charged [in Count __] with second degree murder, and

the1 prosecutor argues that (he/she) is guilty under a theory of felony

murder.



You may find the defendant guilty of second degree felony murder only if

the prosecutor has proven beyond a reasonable doubt that:



1. The defendant committed [or attempted to commit] ______ [insert

inherently dangerous felony].



AND



2. During the commission [or attempted commission] of the ______ [insert

felony], another person was (killed/fatally injured).



The defendant committed [or attempted to commit] ______ [insert felony]

if:



[Insert the numbered elements of the underlying felony or attempted

felony]



A person may be guilty of felony murder even if the killing was

accidental or negligent.



[The defendant must have intended to commit the felony before or at the

time of the killing.]



[A killing occurs during the commission or attempted commission of a

felony when the fatal injury is inflicted during the felony, even if the

victim does not die immediately.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. The court also has a sua sponte duty to instruct

on the elements of the underlying felony. (People v. Cain (1995) 10

Cal.4th 1, 36.) If the victim is fatally injured and dies at a later

time, instruct with "fatally injured" instead of "killed" in element 2.



{127}



If there is evidence that the defendant did not form the intent to

commit the felony until after the homicide, the defendant is entitled

to an instruction pinpointing this issue. (People v. Hudson (1955) 45

Cal.2d 121, 124-27.)



A person is not guilty of felony murder for killings committed during

the felony by a person other than the defendant or his or her

accomplice. (People v. Washington (1965) 62 Cal.2d 777, 782-83; People

v. Caldwell (1984) 36 Cal.3d 210, 216; see also People v. Gardner

(1995) 37 Cal.App.4th 473, 477.) Liability may be imposed, however,

under the provocative act doctrine. (See instruction __, Provocative

Act Doctrine.)



Related Instructions



If aiding and abetting is relied on give instruction __, Felony Murder:

Aiding and Abetting. (See People v. Pulido (1997) 15 Cal.4th 713; People

v. Esquivel (1994) 28 Cal.App.4th 1386; People v. Anderson (1991) 233

Cal.App.3d 1646, 1656.)



If the prosecutor is proceeding under both malice and felony murder

theories, the court should also give instruction 730, Malice versus

Felony Murder. No instruction on malice should be given if the

prosecutor is relying only on a felony murder theory. (See People v.

Cain (1995) 10 Cal.4th 1, 35-37 [error to instruct on malice when only

felony murder charged].)



Felony murder requires that the killing and felony occur as parts of a

continuous transaction. (People v. Whitehorn (1963) 60 Cal.2d 256, 264

[discussing requirement in context of rape].) This issue typically

arises in burglary and robbery cases where there is a question about

when those crimes end for purposes of liability for felony murder. (See

instruction __, Burglary: Complete for Felony Murder or instruction __,

Robbery: Complete for Felony Murder; see also People v. Pearch (1991)

229 Cal.App.3d 1282, 1299 [duty to instruct on when kidnapping ends].)

For a general discussion of the issue, see People v. Stamp (1969) 2

Cal.App.3d 203, 209-11 [ robbery case ]; People v. Hernandez (1988) 47

Cal.3d 315, 348 [sodomy and rape case]; People v. Thompson (1990) 50

Cal.3d 134, 171-72 [case involving lewd and lascivious acts with a

child]; People v. Atkins (1982) 128 Cal.App.3d 564, 568 [comparing

special circumstances case].)



AUTHORITY



Inherently Dangerous Felonies » People v. Satchell (1971) 6 Cal.3d 28,

33-41, overruled on other grounds in People v. Flood (1998) 18 Cal.4th,

470; People v. Henderson (1977) 19 Cal.3d 86, 93, overruled on other

grounds in People v. Flood (1998) 18 Cal.4th, 470; People v. Patterson

(1989) 49 Cal.3d 615, 622-25.



{128}



Intent » People v. Sears (1965) 62 Cal.2d 737, 745, overruled on other

grounds in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17; People v.

Esquivel (1994) 28 Cal.App.4th 1386, 1396.



Continuous Transaction Requirement » People v. Whitehorn (1963) 60

Cal.2d 256, 264; People v. Hernandez (1988) 47 Cal.3d 315, 348.



Infliction of Fatal Injury » People v. Alvarez (1996) 14 Cal.4th 155,

222-23.



LESSER INCLUDED OFFENSES



Voluntary Manslaughter » Pen. Code, § 192(a).



Involuntary Manslaughter » Pen. Code, § 192(b).



Attempted Murder » Pen. Code, §§ 663, 189.



Underlying Felony and Attempted Underlying Felony



RELATED ISSUES



See generally, the related issues section under instruction 725, Felony

Murder: First Degree.



Merger - Ireland Rule



Assault or assault with a deadly weapon cannot form the basis for a

charge of second degree felony murder because the assaultive conduct

"merges" with the homicide. (People v. Ireland (1969) 70 Cal.2d 522,

539-40 [merger based on assault with a deadly weapon]; see also People

v. Garrison (1989) 47 Cal.3d 746, 778 [first degree felony murder cannot

be based on burglary where intent on entry is to commit assault].)

Because most homicides result from assaultive conduct, permitting

prosecution under the felony murder rule would automatically elevate

most homicides to murder. (Ireland, supra, 70 Cal.2d at pp. 539-40.) The

Supreme Court has rejected specific tests designed to determine whether

a felony falls within the doctrine and instead has applied a policy

analysis in deciding the issue. (People v. Hansen (1994) 9 Cal.4th 300,

311-15 [court looks at effect of including felony within the doctrine

and whether permitting inclusion would frustrate legislative intent

behind felony murder].)



Second Degree Felony Murder - Inherently Dangerous Felonies: Analysis



The second degree felony murder doctrine is triggered when a homicide

occurs during the commission of a felony that is inherently dangerous

to human life. (People v. Satchell (1971) 6 Cal.3d 28, 33-41 and People

v. Henderson (1977) 19 Cal.3d 86, 93, both overruled on other grounds

in People v. Flood (1998) 18 Cal.4th 470.) In People v. Burroughs

(1984) 35 Cal.3d 824, 833, the court described an inherently dangerous

felony as one that cannot be committed without creating a substantial

risk that someone will be killed. However, in People v. Patterson

(1989) 49 Cal.3d 615, 618, 626-27, the court defined an inherently



{129}



dangerous felony as "an offense carrying a high probability that death

will result." (See People v. Coleman (1992) 5 Cal.App.4th 646, 649-50

[court explicitly adopts Patterson definition of inherently dangerous

felony].)



When deciding whether a felony is inherently dangerous, the court should

assess "the elements of the felony in the abstract, not the particular

facts of the case," and consider the statutory definition of the felony

in its entirety. (Satchell, supra, 6 Cal.3d at p. 36; Henderson, supra,

19 Cal.3d at pp. 93-94.) If the statute at issue prohibits a diverse

range of conduct, the court must analyze whether the entire statute or

only the part relating to the specific conduct at issue is applicable.

(See People v. Patterson (1989) 49 Cal.3d 615, 622-25 [analyzing Health

& Saf. Code, §11352, which prohibits range of drug-related behavior, and

holding that only conduct at issue should be considered when determining

dangerousness].)



The following felonies have been found inherently dangerous for

purposes of second degree felony murder:



Attempted Escape From Prison by Force or Violence » Pen. Code, § 4530;

People v. Lynn (1971) 16 Cal.App.3d 259, 272; People v. Snyder (1989)

208 Cal.App.3d 1141, 1143-46.



Discharging a Firearm From a Vehicle at an Inhabited Dwelling » People

v. Hansen (1994) 9 Cal.4th 300 (may also be first degree murder if

intent to shoot a person is present, see Pen. Code, § 189).



Eluding a Police Officer by Driving in Willful Disregard for Safety »

Veh. Code, § 2800.2; People v. Johnson (1993) 15 Cal.App.4th 169,

173-74.



Furnishing a Poisonous Substance » Pen. Code, § 347; People v. Mattison

(1971) 4 Cal.3d 177, 182-84.



Manufacturing Methamphetamine » Health & Saf. Code, § 11379.6(a); People

v. James (1998) 62 Cal.App.4th 244, 270-71.



Reckless Possession of a Bomb » Pen. Code, § 12303.2; People v. Morse

(1992) 2 Cal.App.4th 620, 646, 655.



Shooting at an Inhabited Dwelling » Pen. Code, § 246; People v. Tabios

(1998) 67 Cal.App.4th 1, 9-10.



Shooting at an Occupied Vehicle » Pen. Code, § 246; Tabios, supra, 67

Cal.App.4th at pp. 10-11.



The following felonies have been found to be not inherently dangerous

for purposes of second degree felony murder:



Conspiracy to Possess Methedrine » People v. Williams (1965) 63 Cal.2d

452, 458.



{130}



Felon in Possession of a Firearm » Pen. Code, § 12021; People v.

Satchell (1971) 6 Cal.3d 28, 39-41, overruled on other grounds in People

v. Flood (1998) 18 Cal.4th 470.



Felony Escape From Prison Without Force or Violence » Pen. Code, §

4530(b); People v. Lopez (1971) 6 Cal.3d 45, 51-52.



Grand Theft From the Person » Pen. Code, § 487.2; People v. Morales

(1975) 49 Cal.App.3d 134, 142-43.



Grand Theft False Pretenses » People v. Phillips (1966) 64 Cal.2d 574,

overruled on other grounds in Flood, supra, 18 Cal.4th 470.



False Imprisonment » Pen. Code, § 236; People v. Henderson (1977) 19

Cal.3d 86, 92-96, overruled on other grounds in Flood, supra, 18 Cal.4th

4701.



Felonious Practice of Medicine Without a License » People v. Burroughs

(1984) 35 Cal.3d 824, 830-33.



Felony Child Abuse » Pen. Code, § 273a; People v. Lee (1991) 234

Cal.App.3d 1214, 1228.



Furnishing PCP » Health & Saf. Code, § 11379.5; People v. Taylor (1992)

6 Cal.App.4th 1084, 1100-01.



Extortion » Pen. Code, §§ 518, 519; People v. Smith (1998) 62

Cal.App.4th 1233, 1237- 38.



{131}



730. Malice Versus Felony Murder



The defendant has been tried for murder under two theories: (1) that the

killing was committed with malice aforethought or (2) that a person was

killed during the commission of ______ [insert felony].



Each theory of murder has different requirements, and I will instruct

you on each.



You may not convict the defendant of murder unless all 12 jurors agree

beyond a reasonable doubt that the defendant committed a murder. It is

not necessary that all 12 jurors agree on the same theory.



BENCH NOTES



Instructional Duty



This instruction is designed to be given when murder is charged on

theories of malice and felony murder to help the jury distinguish

between the two theories. It should be given after instruction 701 and

before instruction 720.



{132}



735. Voluntary Manslaughter: Imperfect Self-defense



An [intentional] killing, that would otherwise be murder, is reduced to

voluntary manslaughter if the defendant killed a person because (he/she)

believed that (he/she/another person) was in imminent danger of death or

great bodily injury, even though the belief was unreasonable. In such a

circumstance, (he/she) acts in imperfect self-defense. The defendant

acted with imperfect self-defense if:



1. The defendant believed that (he/she/______ [insert name of third

party]) was being threatened with death or great bodily injury.



2. The defendant believed the threatened harm was immediate.



3. (He/She) believed that the use of deadly force was necessary to

defend against the threat.



AND



4. The defendant's beliefs were unreasonable.



Fear of future harm, no matter how great or how likely the harm, is not

sufficient. The defendant's fear must be of immediate danger to life or

of great bodily injury.



When deciding whether the defendant was in immediate fear of death or

great bodily injury, consider all the circumstances as they were known

and appeared to the defendant.



A person who kills [intentionally] with imperfect self-defense is not

guilty of  murder. To establish murder, the prosecutor must prove beyond

a reasonable doubt that the defendant did not act with imperfect

self-defense.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on voluntary manslaughter on

either theory, heat of passion or unreasonable self-defense, when

evidence of either is "substantial enough to merit consideration" by the

jury. (People v. McCoy (2000) 79 Cal.App.4th 67; People v. Breverman

(1998) 19 Cal.4th 142, 153-63; People v. Barton (1995) 12 Cal.4th 186,

201.)



{133}



Related Instructions



Instruction 701, Justifiable Homicide: Self-defense or Defense of

Another.



AUTHORITY



Elements » Pen. Code, § 192(a).



Imperfect Self-defense Defined » People v. McCoy (2000) 79 Cal.App.4th

67; People v. Flannel (1979) 25 Cal.3d 668, 680-83; People v. Barton

(1995) 12 Cal.4th 186; In re Christian S. (1994) 7 Cal.4th 768.



COMMENTARY



The Supreme Court recently granted review to determine the intent

requirements needed for voluntary manslaughter. (See People v. Blakeley

(S062453), previously published at 55 Cal.App.4th 319 [review granted

10/1/97].) Because this issue has yet to be resolved, the committee the

decided to leave a bracket around "intentional" in the first sentence of

the instruction.



LESSER INCLUDED OFFENSES



Attempted Voluntary Manslaughter » People v. Von Ronk (1985) 171

Cal.App.3d 818, 822; People v. Williams (1980) 102 Cal.App.3d 1018,

1024-26.



Involuntary manslaughter is not a lesser included offense of voluntary

manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784.)



RELATED ISSUES



Imperfect Self-defense - Battered Woman's Syndrome



Evidence relating to battered woman's syndrome may be considered by the

jury when deciding if the defendant actually feared the batterer and if

that fear was reasonable. (See People v. Humphrey (1996) 13 Cal.4th

1073, 1082-89, disapproving People v. Aris (1989) 215 Cal.App.3d 1178,

1189 [it was error for the court to instruct the jury that evidence of

battered woman's syndrome was only relevant to the defendant's actual

belief].)



Imperfect Self-defense - Defendant is Initial Aggressor



The initial aggressor or perpetrator of a crime may not invoke the

doctrine of self-defense against the victim's legally justified acts.

(See In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1; see also

People v. Balderas (1985) 41 Cal.3d 144, 196.)



{134}



Imperfect Self-defense - Inapplicable to Felony murder



Imperfect self-defense does not apply to felony murder. "Because malice

is irrelevant in first and second degree felony murder prosecutions, a

claim of imperfect self-defense, offered to negate malice, is likewise

irrelevant." (See People v. Tabios (1998) 67 Cal.App.4th 1, 6; see also

People v. Anderson (1991) 233 Cal.App.3d 1646, 1666; People v.

Loustaunau (1986) 181 Cal.App.3d 163, 170.)



Imperfect Self-defense - Threats from Third Parties



The jury may consider evidence of threats against the defendant by third

parties if there is evidence that the defendant associated the victim

with those threats. (People v. Minifie (1996) 13 Cal.4th 1055, 1069 [in

a self-defense case where the court also applied reasoning to imperfect

self-defense].)



Perfect Self-defense



Most courts hold that an instruction on imperfect self-defense is

required in every case in which a court instructs on perfect

self-defense. If there is substantial evidence of a defendant's belief

in the need for self-defense, there will always be substantial evidence

to support an imperfect self-defense instruction because the

reasonableness of that belief will always be at issue. (See People v.

Ceja (1994) 26 Cal.App.4th 78, 85-86; see also People v. DeLeon (1997)

10 Cal.App.4th 815, 824.) The court in People v. Rodriguez disagreed

however, and found that an imperfect self-defense instruction was not

necessary when the defendant's version of the crime "could only lead to

an acquittal based on justifiable homicide," and when the prosecutor's

version of the crime could only lead to a conviction of first degree

murder. (See People v. Rodriguez (1992) 53 Cal.App.4th 1250, 1275; see

also People v. Williams (1992) 4 Cal.4th 354, 362 [in a rape

prosecution, the court was not required to give a mistake-of-fact

instruction where the two sides gave wholly divergent accounts with no

middle ground to support a mistake-offact instruction].)



135



736. Voluntary Manslaughter: Heat of Passion



An [intentional] killing, that would otherwise be murder, is reduced to

voluntary manslaughter if the defendant killed a person because of a

sudden quarrel or in the heat of passion.



The defendant killed a person because of a sudden quarrel or in the heat

of passion if:



1. The defendant killed rashly and under the influence of strong

emotion, and without reason or judgment.



2. (He/She) was provoked to kill by the other person's behavior.



AND



3. The other person's behavior was provocative enough to make an

ordinary person of average disposition act rashly and without judgment.



In evaluating the defendant's reaction to the provocation, consider all

the circumstances as they were known and appeared to the defendant and

consider what an ordinary person in a similar situation with similar

knowledge would have done.75



[The defendant must act without reason or judgment. If enough time

passed between the provocation and the killing for the defendant to

"cool off" and for reason and judgment to return, the defendant did not

act in the heat of passion and the killing is not voluntary

manslaughter.]



[The other person's provocative behavior may occur over a period of

time.]



A person who kills [intentionally] in the heat of passion is not guilty

of murder. To establish murder, the prosecutor must prove beyond a

reasonable doubt that the defendant did not kill as the result of a

sudden quarrel or in the heat of passion.



{136}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on voluntary manslaughter on

either theory, heat of passion or imperfect self-defense, when evidence

of either is "substantial enough to merit consideration" by the jury.

(People v. Breverman (1998) 19 Cal.4th 142, 153-63; People v. Barton

(1995) 12 Cal.4th 186, 201.)



The defendant is entitled, on request, to a pinpoint instruction that

the victim's provocative acts may occur over a period of time. (People

v. Wharton (1991) 53 Cal.3d 522, 569-71.) The other bracketed

instructions are supported by caselaw and should be given if requested

and there is sufficient evidence. No explicit instructional duty,

however, has been identified by caselaw. (See generally, Pen. Code, §§

1093(f), 1127; People v. Thompkins (1987) 195 Cal.App.3d 244, 256;

People v. Harvey (1985) 163 Cal.App.3d 90, 112; People v. Wright (1988)

45 Cal.3d 1126, 1137.)



Related Instructions



Instruction 715, Excusable Homicide: Heat of Passion.



AUTHORITY



Elements » Pen. Code, § 192(a).



Heat of Passion Defined » People v. Breverman (1998) 19 Cal.4th 142,

163; People v. Valentine (1946) 28 Cal.2d 121, 139; People v. Lee (1999)

20 Cal.4th 47, 59.



COMMENTARY



Because there is an issue with respect to the intent requirements for

voluntary manslaughter, the committee has left a bracket around

[intentional] in the first sentence of the instruction. (See People v.

Blakeley (S062453), previously published at 55 Cal.App.4th 319 [rev.

granted 10/1/97].)



LESSER INCLUDED OFFENSES



Attempted Voluntary Manslaughter » People v. Von Ronk (1985) 171

Cal.App.3d 818, 822; People v. Williams (1980) 102 Cal.App.3d 1018,

1024-26.



Involuntary manslaughter is not a lesser included offense of voluntary

manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784.)



{137}



RELATED ISSUES



Fetus



Manslaughter does not apply to the death of a fetus. (People v. Carlson

(1974) 37 Cal.App.3d 349, 355.) "While the Legislature has seen fit to

include the killing of a fetus, as well as a human being, [within] the

definition of murder under Pen. Code, § 187, subd. (a), it has left

untouched the provisions of Pen. Code, § 192, defining manslaughter [as]

the "unlawful killing of a human being." (Id. at p. 351.)



Heat of Passion: Sufficiency of Provocation - Examples



In People v. Breverman, sufficient evidence of provocation existed where

a mob of young men trespassed onto defendant's yard and attacked

defendant's car with weapons. (People v. Breverman (1998) 19 Cal.4th

142, 163-64.) Provocation has also been found sufficient based on: the

murder of a family member (People v. Brooks (1986) 185 Cal.App.3d 687,

694), a sudden and violent quarrel (People v. Elmore (1914) 167 Cal.

205, 211), and the infidelity of a wife (People v. Berry (1976) 18

Cal.3d 509, 515) or lover (People v. Borchers (1958) 50 Cal.2d 321,

328-29).



In the following cases, provocation has been found inadequate as a

matter of law: evidence of name calling, smirking, or staring and

looking stonefaced (People v. Lucas (1997) 55 Cal.App.4th 721,739),

insulting words or gestures (People v. Dixon (1961) 192 Cal.App.2d 88,

91), refusing to have sex in exchange for drugs (People v. Dixon (1995)

32 Cal.App.4th 1547, 1555), a victim's resistance against a rape

attempt (People v. Rich (1988) 45 Cal.3d 1036, 1112), and the desire

for revenge (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.) In

addition the court has suggested that mere vandalism to an automobile

is insufficient for provocation. (See People v. Breverman (1998) 19

Cal.4th 142, 164, fn. 11; In re Christian S. (1994) 7 Cal.4th 768, 779,

fn. 3.)



Heat of Passion: Types of Provocation



Heat of passion does not require anger or rage. It can be "any violent,

intense, highwrought or enthusiastic emotion." (People v. Breverman

(1998) 19 Cal.4th 142, 163-64.)



Heat of Passion: Defendant's Own Standard



Unrestrained and unprovoked rage does not constitute heat of passion,

and a person of extremely violent temperament cannot substitute his or

her own subjective standard for heat of passion. (People v. Valentine

(1946) 28 Cal.2d 121, 139 [court approved admonishing jury on this

point]; People v. Danielly (1949) 33 Cal.2d 362, 377; People v. Berry

(1976) 18 Cal.3d 509, 515.)



Premeditation and Deliberation -- Heat of Passion



Provocation Provocation and heat of passion may reduce murder from first

to second degree. ( People v. Thomas (1945) 25 Cal.2d 880, 903

[provocation raised reasonable doubt about the idea



{138}



of premeditation or deliberation, "leaving the homicide as murder of

the second degree; i.e., an unlawful killing perpetrated with malice

aforethought but without premeditation and deliberation"].) There is,

however, no sua sponte duty to instruct the jury on this issue because

provocation in this context is a defense to the element of

deliberation, not an element of the crime, as it is in the manslaughter

context. (People v. Middleton (1997) 52 Cal.App.4th 19, 33.)



{139}



Series 800 - Robbery and Carjacking



800. Robbery



805. Robbery: Degrees



810. Carjacking



{140}



800. Robbery



The defendant is charged [in Count ______] with robbery.



You may find the defendant guilty of robbery only if the prosecutor has

proven beyond a reasonable doubt that:



1. The defendant took property that was not (his/her) own.



2. The property was taken from another person's possession and immediate

presence.



3. The defendant knowingly used force or fear to take the property or to

prevent the person from resisting.



4. The property was taken against the person's will.



AND



5. At the time the defendant used force or fear to take the property,

(he/she) intended to deprive the person of it permanently.



[Someone possesses property if he or she owns it, has physical control

over it, or has been given responsibility for or authority over it by

the owner.]



[Fear, as used here, means fear of (injury to the person, himself or

herself/or/ injury to the person's family or property/or/immediate

injury to someone else present during the incident or to that person's

property).]



[Property is within a person's immediate presence if it is sufficiently

within his or her physical control that he or she could keep possession

of it if not prevented by force or fear.]



{141}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. There is no sua sponte duty to define the terms

"possession," "fear," and "immediate presence." (People v. Anderson

(1966) 64 Cal.2d 633, 639 [fear]; People v. Mungia (1991) 234 Cal.App.3d

1703, 1708 [fear]; but see 1999 CJER Mandatory Criminal Jury

Instructions Handbook, § 2.66, p. 55 [recommending that a definition of

possession be given].)



Related Instructions



If the defendant is charged with first degree robbery, give instruction

805, Robbery: Degrees. If defendant is charged with second degree

robbery, no other instruction is required.



AUTHORITY



Elements » Pen. Code, § 211.



Intent Requirements for Robbery » People v. Green (1980) 27 Cal.3d 1,

52-53, overruled on other grounds in People v. Hall (1986) 41 Cal.3d

826, 834, fn. 3.



Possession Defined » People v. Bekele (1995) 33 Cal.App.4th 1457, 1461.



Fear Defined » Pen. Code, § 212.



Immediate Presence Defined » People v. Hayes (1991) 52 Cal.3d 577,

626-27.



COMMENTARY



The instruction includes definitions of "possession," "fear," and

"immediate presence" because those terms have meanings in the context of

robbery that are technical and may not be readily apparent to jurors.

(See People v. McElheny (1982) 137 Cal.App.3d 396, 403; People v. Pitmon

(1985) 170 Cal.App.3d 38, 52.)



Possession was defined in the instruction because either actual or

constructive possession of property will satisfy this element, and this

definition may not be readily apparent to jurors. (People v. Bekele

(1995) 33 Cal.App.4th 1457, 1461 [defining possession].) However, in

People v. Nguyen (1998) 67 Cal.App.4th 1241, review granted Feb. 24,

1999, the Court of Appeal held that no possessory interest in the

property is necessary to sustain a robbery conviction and approved an

instruction to that effect given by the trial court.



Fear was defined in the instruction because the statutory definition

includes fear of injury to third parties, and this concept is not

encompassed within the common understanding of fear. Force was not

defined because its definition in the context of robbery is commonly



{142}



understood. (See People v. Garcia (1996) 45 Cal.App.4th 1242, 1246

["force is a factual question to be determined by the jury using its

own common sense"].)



Immediate presence was defined in the instruction because its

definition is related to the use of force and fear and to the victim's

ability to control the property. This definition may not be readily

apparent to jurors.



LESSER INCLUDED OFFENSES



Attempted Robbery » Pen. Code, §§ 663, 211; People v. Webster (1991) 54

Cal.3d 411, 443.



Grand Theft » Pen. Code, §§ 484-487h; People v. Webster, supra, at p.

443.



Grand Theft Vehicle » Pen. Code, § 487h(a); People v. Gamble (1994) 22

Cal.App.4th 446, 450; People v. Escobar (1996) 45 Cal.App.4th 477, 482.



Petty Theft » Pen. Code, §§ 484-488; People v. Covington (1934) 1 Cal.2d

316, 320.



When there is evidence that the defendant formed the intent to steal

after the application of force or fear, the court has a sua sponte duty

to instruct on any relevant lesser included offenses. (People v.

Bradford (1997) 14 Cal.4th 1005, 1055-57 [error not to instruct on

lesser included offense of theft]); People v. Ramkeesoon (1985) 39

Cal.3d 346, 350-52 [same].)



RELATED ISSUES



After-Formed Intent



A person must have formed the intent to steal before or when he or she

used force to take the property. (People v. Green (1980) 27 Cal.3d 1,

52; People v. Turner (1990) 50 Cal.3d 668, 691; People v. Marshall

(1997) 15 Cal.4th 1, 34; Rodriguez v. Santa Clara Superior Court (1984)

159 Cal.App.3d 821, 825-26.)



Asportation



To constitute a taking, the property need only be moved a small

distance. It does not have to be under the robber's actual physical

control. If a person acting under the robber's direction, including the

victim, moves the property, the element of taking is satisfied. (People

v. Martinez (1969) 274 Cal.App.2d 170, 174; People v. Price (1972) 25

Cal.App.3d 576, 578.)



Claim of Right



If a person honestly believes that he or she has a right to the property

even if that belief is mistaken or unreasonable, such belief is a

defense to robbery. (People v. Butler (1967) 65 Cal.2d 569, 573; People

v. Romo (1990) 220 Cal.App.3d 514, 518 [discussing defense in



{143}



context of theft]; see instruction __, Claim of Right.) This defense is

only available for robberies where a specific piece of property is

reclaimed; it is not a defense to robberies perpetrated to settle a

debt, liquidated or unliquidated. (People v. Tunfunga (1999) 21 Cal.4th

935, 945-50.)



Fear



A victim's fear may be shown by circumstantial evidence. (People v.

Davison (1995) 32 Cal.App.4th 206, 212.) Even when the victim testifies

that he or she is not afraid, circumstantial evidence may satisfy the

element of fear. (People v. Renteria (1964) 61 Cal.2d 497, 498-99.)



Force



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, 1246 [noting that the force employed by a pickpocket would be

insufficient].)



The application of force or fear may be used when taking the property

or when carrying it away. (People v. Cooper (1991) 53 Cal.3d 1158,

1165, fn. 8; People v. Pham (1993) 15 Cal.App.4th 61, 65-67; People v.

Estes (1983) 147 Cal.App.3d 23, 27-28.)



Administering an intoxicating substance or poison to the victim in

order to take property constitutes force. (People v. Dreas (1984) 153

Cal.App.3d 623, 628-29; but see People v. Kelley (1990) 220 Cal.App.3d

1358, 1371-72 [no force where victim became voluntarily intoxicated];

see also People v. Wright (1996) 52 Cal.App.4th 203, 209-10 [explaining

force for purposes of robbery and contrasting it with force required

for assault].)



Immediate Presence



Property that is 80 feet away or around the corner of the same block

from a forcibly held victim is not too far away, as a matter of law, to

be outside the victim's immediate presence. (People v. Harris (1994) 9

Cal.4th 407, 415; see also People v. Prieto (1993) 15 Cal.App.4th 210,

214 [reviewing cases where victim is a distance away from property

taken].) Property has also been found to be within a person's immediate

presence when the victim is lured away from his or her property and

force is subsequently used to accomplish the theft or escape (People v.

Webster (1991) 54 Cal.3d 411, 440-42) or when the victim abandons the

property out of fear (People v. Dominquez (1992) 11 Cal.App.4th 1342,

1348-49.)



Multiple Victims



Multiple counts of robbery are permissible when there are multiple

victims even if only one taking occurred. (People v. Ramos (1982) 30

Cal.3d 553, 589, reversed on other grounds California v. Ramos (1983)

463 U.S. 992; People v. Miles (1996) 43 Cal.App.4th 364 [multiple

punishment permitted].) Conversely, a defendant commits



{144}



only one robbery, no matter how many items are taken from a single

victim pursuant to a single plan. (People v. Brito (1991) 232

Cal.App.3d 316, 325-26, fn. 8.)



Value



The property taken can be of small or minimal value. (People v. Simmons

(1946) 28 Cal.2d 699, 705; People v. Thomas (1941) 45 Cal.App.2d 128,

134-35.) The property does not have to be taken for material gain. All

that is necessary is that the defendant intended to permanently deprive

the person of the property. (People v. Green (1980) 27 Cal.3d 1, 57.)



{145}



805. Robbery: Degrees



Robbery is divided into two degrees. If you conclude the defendant

committed a robbery, you must then decide the degree.



You may find the defendant guilty of first degree robbery only if the

prosecutor has proven beyond a reasonable doubt that:



[The robbery was committed in an inhabited (dwelling/vessel/floating

home/trailer coach/part of a building). A (house/vessel/floating

home/trailer coach/ part of a building) is inhabited if someone lives

there and is present or has left temporarily and plans to return.]



[The robbery was committed while the person robbed was using or had just

used an ATM machine and was still near the machine.]



[The robbery was committed while the person robbed was performing

(his/her) duties as the driver of or was a passenger on a

(bus/taxi/cable car/streetcar/trackless trolley/any vehicle used to

transport people for hire.)]



All other robberies are second degree.



{146}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction if first degree

robbery has been charged.



AUTHORITY



Determination of Degrees » Pen. Code, § 212.5.



Inhabitation » People v. Jackson (1992) 6 Cal.App.4th 1185, 1188.



Vessel Defined » Harb. & Nav. Code, § 21.



Floating Home Defined » Health & Saf. Code, § 18075.55(d).



Trailer Coach Defined » Veh. Code, § 635; Health & Saf. Code, §

18010(b).



RELATED ISSUES



Hotel Room



A hotel room is an "inhabited dwelling house" for purposes of first

degree robbery. (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987-88.)



Robbery in One's Own Residence



A robbery committed in one's own residence is still first degree robbery

under Penal Code section 212.5. (Pen. Code, § 212.5; People v. Alvarado

(1990) 224 Cal.App.3d 1165, 1169 [defendant robbed two salesmen after

bringing them back to his hotel room]; People v. McCullough (1992) 9

Cal.App.4th 1298, 1300.)



{147}



810. Carjacking



The defendant is charged [in Count __] with carjacking.



You may find the defendant guilty of carjacking only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant took a motor vehicle that was not (his/her) own.



2. The vehicle was taken from another person's possession and immediate

presence.



3. The defendant knowingly used force or fear to take the vehicle or to

prevent the person from resisting.



4. The vehicle was taken against the person's will.



AND



5. At the time the defendant used force or fear to take the vehicle,

(he/she) intended to deprive the person of it either temporarily or

permanently.



[Someone possesses a vehicle if he or she owns it, has physical control

over it, or has been given responsibility for or authority over it by

the owner.]



[Fear, as used here, means fear of (injury to the person, himself or

herself/or/ injury to the person's family or property/or/immediate

injury to someone else present during the incident or to that person's

property).]



[A vehicle is within a person's immediate presence if it is sufficiently

within his or her control and he or she could keep possession of it if

not prevented by force or fear.]



{148}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



AUTHORITY



Elements » Pen. Code, § 215.



Possession Defined » People v. Bekele (1995) 33 Cal.App.4th 1457, 1461.



Fear Defined » Pen. Code, § 212.



Immediate Presence Defined » People v. Hayes (1991) 52 Cal.3d 577,

626-27; People v. Medina (1995) 39 Cal.App.4th 643, 650.



RELATED ISSUES



Force-Timing



Force or fear must be used against the victim to gain possession of the

vehicle. The timing, however, "in no way depends on whether the

confrontation and use of force or fear occurs before, while, or after

the defendant initially takes possession of the vehicle." (People v.

O'Neil (1997) 56 Cal.App.4th 1126, 1133.)



{149}



Series 1050 - Arson



1050. Arson



1053. Arson: Great Bodily Injury



1055. Arson: Inhabited Structure



1060. Unlawfully Causing a Fire



1063. Unlawfully Causing a Fire: Great Bodily Injury



1065. Unlawfully Causing a Fire: Inhabited Structure



1070. Possession of Incendiary Device



1075. Attempted Arson



{150}



1050. Arson



The defendant is charged [in Count __] with arson.



You may find the defendant guilty of arson only if the prosecutor has

proven beyond a reasonable doubt that:



1. The defendant burned [or (counseled/helped/caused) the burning of] (a

structure/forest land/property).



AND



Alternative 2A [if intent is to set a fire]



[2A. (He/She) acted willfully and maliciously.]



Alternative 2B [if intent is to set a fire to a structure, forest land,

or property]



[2B. (He/She) acted willfully and maliciously with the intent to burn a

(structure/forest land/property).]



To burn means to damage or destroy with fire either all or part of

something, no matter how small the part.



A person acts maliciously when he or she does something with the intent

to disturb, defraud, annoy, or injure someone else, or to do a wrongful

act.



[A structure is any (building/bridge/tunnel/power plant/commercial or

public tent).]



[Forest land means brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



[A person does not commit arson if the only thing burned is his or her

own personal property, unless he or she acts with the intent to defraud,

or the fire also injures another person or another person's structure,

forest land, or property.]



{151}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Two alternatives have been provided for the

second element, reflecting a split of authority regarding the intent

required for arson. (Compare In re Stonewall (1989) 208 Cal.App.3d 1054,

1066 with People v. Glover (1991) 233 Cal.App.3d 1476, 1483.)



Related Instructions



If it is also alleged that the fire caused great bodily injury or burned

an inhabited structure or property, see instructions 1053, Arson: Great

Bodily Injury and 1055, Arson: Inhabited Structure.



If attempted arson is charged, do not instruct generally on attempts

but give instruction 1075, Attempted Arson. (Pen. Code, § 455.)



AUTHORITY



Elements » Pen. Code, § 451.



Structure, Forest Land, and Maliciously Defined » Pen. Code, § 450.



To Burn Defined » People v. Haggerty (1873) 46 Cal. 354, 355; In re

Jesse L. (1990) 221 Cal.App.3d 161, 166-67.



COMMENTARY



The instruction includes two alternatives defining the scienter

requirement for arson. Several Courts of Appeal have held that the

perpetrator need only intend to set fire to or burn something and that

there is no need to prove an intent to burn the specific targets listed

in the statute. (People v. Glover (1991) 233 Cal.App.3d 1476; People v.

Lopez (1993) 13 Cal.App.4th 1840; People v. Lee (1994) 28 Cal.App.4th

659; People v. Fry (1993) 19 Cal.App.4th 1334, 1338-39.) In contrast, at

least one Court of Appeal has construed the statute to require that a

person intend to set fire to one of the specified statutory targets. (In

re Stonewall (1989) 208 Cal.App.3d 1054; see also People v. Fabris

(1995) 31 Cal.App.4th 685.)[1]



Penal Code section 451 allows conviction for arson if a person "sets

fire to or burns or causes to be burned or who aids, counsels, or

procures the burning of" any of the targets



1. The Supreme Court has granted review in a case that will probably

address this issue. (See People v. Atkins (1999) 74 Cal.App.4th 466,

review granted November 17, 1999 (S082662) [trial court erred in not

admitting evidence of voluntary intoxication in arson case].) In Atkins,

the court of appeal reasoned that the intent to commit arson was the

intent to set fire to a building, structure, or property; therefore, the

trial court erred in not admitting evidence of the defendant's voluntary

intoxication which was relevant to whether the defendant formed that

intent.



{152}



listed in the statute. Because this list is redundant, only the

following verbs are provided as alternatives in the instruction:

burned, counseled, helped, or causes the burning of."



LESSER INCLUDED OFFENSES



Attempted Arson » Pen. Code, § 455.



Unlawfully Causing a Fire » People v. Hooper (1986) 181 Cal.App.3d 1174,

1182 [disapproved of in People v. Barton (1995) 12 Cal.4th 186 on its

holding that failure to instruct on this crime as a lesser included

offense of arson was invited error because defense counsel objected to

such instruction]; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324.



RELATED ISSUES



Aiding and Abetting



Where the prosecution relies on a theory of aiding and abetting to

support a charge of arson and the jury is given other instructions

regarding aiding and abetting liability, the trial court must define the

requirements for aiding and abetting as prescribed by People v. Beeman

(1984) 35 Cal.3d 547. (People v. Sarkis (1990) 222 Cal.App.3d 23,

26-28.)



Fixtures



Fire damage to fixtures within a building may satisfy the burning

requirement if the fixtures have become affixed such that they are an

integral part of the structure. (In re Jesse L. (1990) 221 Cal.App.3d

161, 167-68; People v. Lee (1994) 24 Cal.App.4th 1773, 1778 [whether

wall-to-wall carpeting is a fixture is question of fact for jury].)



Property - Clothing



Arson includes burning a victim's clothing. (People v. Reese (1986) 182

Cal.App.3d 737, 739-40.)



{153}



1053. Arson: Great Bodily Injury



The defendant is charged [in Count __] with arson that caused great

bodily injury.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant burned [or (counseled/helped/or caused) the burning of]

(a structure/forest land/property).



Alternative 2A [if intent is to set a fire]



[2A. (He/She) acted willfully and maliciously.]



Alternative 2B [if intent is to set a fire to a structure, forest land,

or property]



[2B. (He/She) acted willfully and maliciously with the intent to burn a

(structure/forest land/property).]



AND



3. The fire caused great bodily injury to another person. Great bodily

injury means a significant or substantial physical injury.



To burn means to damage or destroy with fire either all or part of

something, no matter how small the part.



A person acts maliciously when he or she does something with the intent

to disturb, defraud, annoy, or injure someone else, or to do a wrongful

act.



[A structure is any (building/bridge/tunnel/power plant/commercial or

public tent).]



[Forest land means brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



[If you find that the defendant willfully and maliciously burned [and

had the intent to burn] (a structure/forest land/property), but the fire

did not cause great bodily injury, the defendant is guilty of arson.]



{154}



[A person does not commit arson if the only thing burned is his or her

own personal property, unless he or she acts with the intent to defraud,

or the fire also injures another person or another person's structure,

forest land, or property.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Two alternatives have been provided for the

second element, reflecting a split of authority regarding the intent

required for arson. (Compare In re Stonewall (1989) 208 Cal.App.3d 1054,

1066 with People v. Glover (1991) 233 Cal.App.3d 1476, 1483.)



If an instruction on arson as a lesser included offense is required,

instruct using the second to last bracketed paragraph, instead of

giving instruction 1050, Arson. If the court instructs on alternative

2B in the elements, which requires an intent to burn one of the targets

in the statute, the court must also give the bracketed phrase within

this paragraph that includes this intent.



Related Instructions



If attempted arson is charged, do not instruct generally on attempts but

give instruction 1075, Attempted Arson. (Pen. Code, § 455.)



AUTHORITY



Elements » Pen. Code, § 451.



Structure, Forest Land, and Maliciously Defined » Pen. Code, § 450.



To Burn Defined » People v. Haggerty (1873) 46 Cal. 354, 355; In re

Jesse L. (1990) 221 Cal.App.3d 161, 166-67.



Great Bodily Injury » Pen. Code, § 12022.7(e).



COMMENTARY



The instruction includes two alternatives defining the scienter

requirement for arson. Several Courts of Appeal have held that the

perpetrator need only intend to set fire to or burn something and that

there is no need to prove an intent to burn the specific targets listed

in the statute. (People v. Glover (1991) 233 Cal.App.3d 1476; People v.

Lopez (1993) 13 Cal.App.4th 1840; People v. Lee (1994) 28 Cal.App.4th

659; People v. Fry (1993) 19 Cal.App.4th 1334, 1338-39.) In contrast, at

least one Court of Appeal has construed the statute to require that a

person intend to set fire to one of the specified



{155}



statutory targets. (In re Stonewall (1989) 208 Cal.App.3d 1054; see

also People v. Fabris (1995) 31 Cal.App.4th 685.)[2]



Penal Code section 451 allows conviction for arson if a person "sets

fire to or burns or causes to be burned or who aids, counsels, or

procures the burning of" any of the targets listed in the statute.

Because this list is redundant, only the following verbs are provided

as alternatives in the instruction: burned, counseled, helped, or

caused the burning of.



RELATED ISSUES



See generally, the related issues section under instruction 1050, Arson.



2. The SupremeCourt has granted review in a case that will probably

address this issue. (See People v. Atkins (1999) 74 Cal.App.4th 466,

review granted November 17, 1999 (S082662) [trial court erred in not

admitting evidence of voluntary intoxication in arson case].) In Atkins,

the court of appeal reasoned that the intent to commit arson was the

intent to set fire to a building, structure, or property; therefore, the

trial court erred in not admitting evidence of the defendant's voluntary

intoxication which was relevant to whether the defendant formed that

intent.



{156}



1055. Arson: Inhabited Structure



The defendant is charged [in Count __] with arson that burned an

inhabited structure.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant burned [or (counseled/helped/or caused) the burning of

(a structure/forest land/property.)



Alternative 2A [if intent is to set a fire]



[2A. (He/She) acted willfully and maliciously.]



Alternative 2B [if intent is to set a fire to a structure, forest land,

or property]



[2B. (He/She) acted willfully and maliciously with the intent to burn a

(structure/forest land/property).]



AND



3. The fire burned an inhabited structure.



A structure is any (building /bridge/tunnel/power plant/commercial or

public tent.) A structure is inhabited if someone lives there and (a) is

present or (b) has left but intends to return.



[Forest land means brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



To burn means to damage or destroy with fire either all or part of

something, no matter how small the part.



A person acts maliciously when he or she does something with the intent

to disturb, defraud, annoy, or injure someone else, or to do a wrongful

act.



[If you find that the defendant willfully and maliciously burned [and

had the intent to burn] (a structure/forest land/property), but the fire

did not cause an inhabited structure to burn, the defendant is guilty of

arson.]



{157}



[A person does not commit arson if the only thing burned is his or her

own personal property, unless he or she acts with the intent to defraud,

or the fire also injures another person or another person's structure,

forest land, or property.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Two alternatives have been provided for the

second element reflecting a split of authority regarding the intent

required for arson. (Compare In re Stonewall (1989) 208 Cal.App.3d 1054,

1066 with People v. Glover (1991) 233 Cal.App.3d 1476, 1483.)



If an instruction on arson as a lesser included offense is required,

instruct using the second to last bracketed paragraph, instead of

giving instruction 1050, Arson. If the court instructs on alternative

2B in the elements, which requires an intent to burn one of the targets

in the statute, the court must also give the bracketed phrase within

this paragraph that includes this intent.



Related Instructions



If attempted arson is charged, do not instruct generally on attempts but

give instruction 1075, Attempted Arson. (Pen. Code, § 455.)



AUTHORITY



Elements » Pen. Code, § 451.



Structure, Forest Land, and Maliciously Defined » Pen. Code, § 450.



To Burn Defined » People v. Haggerty (1873) 46 Cal. 354, 355; In re

Jesse L. (1990) 221 Cal.App.3d 161, 166-67.



Inhabited Defined » Pen. Code, § 450; People v. Jones (1988) 199

Cal.App.3d 543.



COMMENTARY



The instruction includes two alternatives defining the scienter

requirement for arson. Several Courts of Appeal have held that the

perpetrator need only intend to set fire to or burn something and that

there is no need to prove an intent to burn the specific targets listed

in the statute. (People v. Glover (1991) 233 Cal.App.3d 1476; People v.

Lopez (1993) 13 Cal.App.4th 1840; People v. Lee (1994) 28 Cal.App.4th

659; People v. Fry (1993) 19 Cal.App.4th 1334, 1338-39.) In contrast, at

least one Court of Appeal has construed the statute to require that a

person intend to set fire to one of the specified



{158}



statutory targets. (In re Stonewall (1989) 208 Cal.App.3d 1054; see

also People v. Fabris (1995) 31 Cal.App.4th 685.)[3]



Penal Code section 451 allows conviction for arson if a person "sets

fire to or burns or causes to be burned or who aids, counsels, or

procures the burning of" any of the targets listed in the statute.

Because this list is redundant, only the following verbs are provided

as alternatives in the instruction: burned, counseled, helped, or

caused the burning of.



RELATED ISSUES



Inhabited -- Apartment



Defendant's conviction for arson of an inhabited structure was proper

where he set fire to his estranged wife's apartment several days after

she had vacated it. Although his wife's apartment was not occupied, it

was in a large apartment building where many people lived; it was,

therefore, occupied for purposes of the arson statute. (People v. Green

(1983) 146 Cal.App.3d 369, 378-79.)



3. The Supreme Court has granted review in a case that will probably

address this issue. (See People v. Atkins (1999) 74 Cal.App.4th 466,

review granted November 17, 1999 (S082662) [trial court erred in not

admitting evidence of voluntary intoxication in arson case].) In Atkins,

the court of appeal reasoned that the intent to commit arson was the

intent to set fire to a building, structure, or property; therefore, the

trial court erred in not admitting evidence of the defendant's voluntary

intoxication which was relevant to whether the defendant formed that

intent.



{159}



1060. Unlawfully Causing a Fire



The defendant is charged [in Count __] with unlawfully causing a fire.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant burned or caused the burning of (a structure/forest

land/property).



AND



2. The defendant did so recklessly.



Recklessness - General Definition



[A person acts recklessly when (1) he or she is aware that his or her

actions present a substantial and unjustifiable risk of causing a fire,

(2) he or she knowingly ignores that risk, and (3) ignoring the risk is

a gross deviation from what a reasonable person would have done in the

same situation.]



Recklessness - Voluntary Intoxication



[A person acts recklessly when (1) he or she does an act that presents a

substantial and unjustifiable risk of causing a fire but (2) he or she

is unaware of the risk because he or she is voluntarily intoxicated.

Intoxication is voluntary if the defendant willingly used any

intoxicating drink, drug, or other substance knowing that it could

produce an intoxicating effect.]



To burn means to damage or destroy with fire either all or part of

something, no matter how small the part.



[A structure is any (building/bridge/tunnel/power plant/commercial or

public tent).]



[Forest land means brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



[A person does not unlawfully cause a fire if the only thing burned is

his or her own personal property, unless he or she acts with the intent

to defraud, or the fire also injures another person or another person's

structure, forest land, or property.]



{160}



[Arson and unlawfully causing a fire require different mental states.

For arson, a person must act willfully and maliciously. For unlawfully

causing a fire, a person must act recklessly.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Depending upon the theory of recklessness the

prosecutor is alleging, the court should instruct with alternative A or

B.



If the defendant is also charged with arson, the court may wish to give

the last bracketed paragraph, which explains the difference in intent

between unlawfully causing a fire and arson. (People v. Hooper (1986)

181 Cal.App.3d 1174, 1182 [disapproved of in People v. Barton (1995) 12

Cal.4th 186 on the point that defense counsel's objection to

instruction on lesser included offense constituted invited error];

People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324.)



Related Instructions



If it is also alleged that the fire caused great bodily injury or burned

an inhabited structure or property, see instructions 1063, Unlawfully

Causing a Fire: Great Bodily Injury and 1065, Unlawfully Causing a Fire:

Inhabited Structure.



AUTHORITY



Elements » Pen. Code, § 452.



Structure, Forest Land Defined » Pen. Code, § 450.



To Burn Defined » People v. Haggerty (1873) 46 Cal. 354, 355; In re

Jesse L. (1990) 221 Cal.App.3d 161, 166-67.



Difference Between This Crime and Arson » People v. Hooper (1986) 181

Cal.App.3d 1174, 1182.



COMMENTARY



Penal Code section 452 allows conviction for unlawfully causing a fire

if a person recklessly "sets fire to or burns or causes to be burned"

any of the targets listed in the statute. Because "sets fire to" is

redundant, only burned or caused the burning of have been included in

the instruction.



RELATED ISSUES



See generally, the related issues section under instruction 1050, Arson.



{161}



1063. Unlawfully Causing a Fire: Great Bodily Injury



The defendant is charged [in Count __] with unlawfully causing a fire

that caused great bodily injury.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant burned or caused the burning of (a structure/forest

land/property).



2. The defendant did so recklessly.



AND



3. The fire caused great bodily injury to another person. Great bodily

injury means a significant or substantial physical injury.



Recklessness - General Definition



[A person acts recklessly when (1) he or she is aware that his or her

actions present a substantial and unjustifiable risk of causing a fire,

(2) he or she knowingly ignores that risk, and (3) ignoring the risk is

a gross deviation from what a reasonable person would have done in the

same situation.]



Recklessness - Voluntary Intoxication



[A person acts recklessly when (1) he or she does an act that presents a

substantial and unjustifiable risk of causing a fire but (2) he or she

is unaware of the risk because he or she is voluntarily intoxicated.

Intoxication is voluntary if the defendant willingly used any

intoxicating drink, drug, or other substance knowing that it could

produce an intoxicating effect.]



To burn means to damage or destroy with fire either all or part of

something, no matter how small the part.



[A structure is any (building/bridge/tunnel/power plant/commercial or

public tent).]



[Forest land means brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.] [If

you find that the defendant recklessly burned (a structure/forest

land/property), but the fire did not cause great bodily injury, the

defendant is guilty of unlawfully causing a fire.]



{162}



[A person does not unlawfully cause a fire if the only thing burned is

his or her own personal property, unless he or she acts with the intent

to defraud, or the fire also injures another person or another person's

structure, forest land, or property.]



[Arson and unlawfully causing a fire require different mental states.

For arson, a person must act willfully and maliciously. For unlawfully

causing a fire, a person must act recklessly.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Depending upon the theory of recklessness the

prosecutor is alleging, the court should instruct with alternative A or

B.



If the defendant is also charged with arson, the court may wish to give

the last bracketed paragraph, which explains the difference in intent

between unlawfully causing a fire and arson. (People v. Hooper (1986)

181 Cal.App.3d 1174, 1182 [disapproved of in People v. Barton (1995) 12

Cal.4th 186 on the point that defense counsel's objection to

instruction on lesser included offense constituted invited error];

People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324.)



If an instruction on unlawfully causing a fire as a lesser included

offense is required, instruct using the bracketed paragraph explaining

the difference between the two crimes, instead of giving instruction

1060, Unlawfully Causing a Fire.



AUTHORITY



Elements » Pen. Code, § 452.



Great Bodily Injury » Pen. Code, § 12022.7(e). Structure, Forest Land

Defined » Pen. Code, § 450.



To Burn Defined » People v. Haggerty (1873) 46 Cal. 354, 355; In re

Jesse L. (1990) 221 Cal.App.3d 161, 166-67.



Difference Between This Crime and Arson » People v. Hooper (1986) 181

Cal.App.3d 1174, 1182.



{163}



COMMENTARY



Penal Code section 452 allows conviction for unlawfully causing a fire

if a person recklessly "sets fire to or burns or causes to be burned"

any of the targets listed in the statute. Because "sets fire to" is

redundant, only burned or caused the burning of have been included in

the instruction.



RELATED ISSUES



See generally, the related issues sections under instructions 1050,

Arson and 1060, Unlawfully Causing a Fire.



{164}



1065. Unlawfully Causing a Fire: Inhabited Structure



The defendant is charged [in Count __] with unlawfully causing a fire

that burned an inhabited structure.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant burned, set fire to, or caused the burning of (a

structure/forest land/property).



2. The defendant did so recklessly.



AND



3. The fire burned an inhabited structure.



Recklessness - General Definition



[A person acts recklessly when (1) he or she is aware that his or her

actions present a substantial and unjustifiable risk of causing a fire,

(2) he or she knowingly ignores that risk, and (3) ignoring the risk is

a gross deviation from what a reasonable person would have done in the

same situation.]



Recklessness - Voluntary Intoxication



[A person acts recklessly when (1) he or she does an act that presents a

substantial and unjustifiable risk of causing a fire but (2) he or she

is unaware of the risk because he or she is voluntarily intoxicated.

Intoxication is voluntary if the defendant willingly used any

intoxicating drink, drug, or other substance knowing that it could

produce an intoxicating effect.]



To burn means to damage or destroy with fire either all or part of

something, no matter how small the part.



A structure is a (building/bridge/tunnel/power plant/commercial or

public tent). A structure is inhabited if someone lives there and (a) is

present or (b) has left but intends to return.



[Forest land means brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



{165}



[If you find that the defendant recklessnly burned (a structure/forest

land/property), but the fire did not cause an inhabited structure to

burn, the defendant is guilty of unlawfully causing a fire.]



[A person does not unlawfully cause a fire if the only thing burned is

his or her own personal property, unless he or she acts with the intent

to defraud, or the fire also injures another person or another person's

structure, forest land, or property.]



[Arson and unlawfully causing a fire require different mental states.

For arson, a person must act willfully and maliciously. For unlawfully

causing a fire, a person must act recklessly.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Depending upon the theory of recklessness the

prosecutor is alleging, the court should instruct with alternative A or

B.



If the defendant is also charged with arson, the court may wish to give

the last bracketed paragraph, which explains the difference in intent

between unlawfully causing a fire and arson. (People v. Hooper (1986)

181 Cal.App.3d 1174, 1182 [disapproved of in People v. Barton (1995) 12

Cal.4th 186 on the point that defense counsel's objection to

instruction on lesser included offense constituted invited error];

People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324.)



If an instruction on unlawfully causing a fire as a lesser included

offense is required, instruct using the bracketed paragraph explaining

the difference between the two crimes, instead of giving instruction

1060, Unlawfully Causing a Fire.



AUTHORITY



Elements » Pen. Code, § 452.



Structure, Forest Land Defined » Pen. Code, § 450.



Inhabited Defined » Pen. Code, § 450; People v. Guthrie (1983) 144

Cal.App.3d 832, 838, 848; People v. Jones (1988) 199 Cal.App.3d 543.



To Burn Defined » People v. Haggerty (1873) 46 Cal. 354, 355; In re

Jesse L. (1990) 221 Cal.App.3d 161, 166-67.



Difference Between This Crime and Arson » People v. Hooper (1986) 181

Cal.App.3d 1174, 1182.



{166}



COMMENTARY



Penal Code section 452 allows conviction for unlawfully causing a fire

if a person recklessly "sets fire to or burns or causes to be burned"

any of the targets listed in the statute. Because "sets fire to" is

redundant, only burned or caused the burning of have been included in

the instruction.



RELATED ISSUES



See generally, the related issues sections under instructions 1050,

Arson and 1060, Unlawfully Causing a Fire.



{167}



1070. Possession of Incendiary Device



The defendant is charged [in Count __] with possessing an incendiary

device or flammable material.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant (possessed/made/manufactured/disposed of) flammable or

combustible material or an incendiary device in an arrangement or

preparation.



AND



2. The defendant willfully and maliciously intended to use the

material11 or device to burn (a structure/forest land/property).



A person acts maliciously when he or she does something with the intent

to disturb, defraud, annoy, or injure someone else, or to do a wrongful

act.



Incendiary device means a device constructed or designed to start an

incendiary fire by instant, remote or delayed means. [It is not a device

commercially manufactured primarily for illumination.]



Incendiary fire means a fire deliberately ignited under circumstances in

which a person knows that the fire should not be ignited.



[Dispose of means to give, give away, offer, offer for sale, sell,

transfer, or loan.]



[A structure means any (building/bridge/tunnel/power plant/commercial or

public tent).]



[Forest land means any brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



{168}



BENCH NOTES



Instructional Duty The court has a sua sponte duty to give this

instruction defining the elements of the crime.



AUTHORITY



Elements » Pen. Code, § 453.



Manufacture Defined » People v. Combs (1985) 165 Cal.App.3d 422, 427.



Structure and Forest Land Defined » Pen. Code, § 450.



COMMENTARY



Penal Code section 453 allows conviction for possession of an incendiary

device if a person possesses such a device with the intent to use the

device to "set fire to or burn" any of the targets listed in the

statute. Because "set fire to" is redundant, only burned was included in

the instruction.



{169}



1075. Attempted Arson



The defendant is charged [in Count __] with the crime of attempted

arson. You may find the defendant guilty of this crime only if the

prosecutor has proven beyond a reasonable doubt that:



The defendant willfully and maliciously attempted to burn [or counseled,

aided in, or procured the attempted burning of] (a structure/forest

land/property).



A person tries to burn (a structure/forest land/property) when he or she

places any flammable, explosive, or combustible material or device in or

around it with the intent to set fire to it.



A person acts maliciously when he or she does something with the intent

to disturb, defraud, annoy, or injure someone else, or to do a wrongful

act.



[A structure is any (building/bridge/tunnel/power plant/commercial or

public tent).]



[Forest land is any brush-covered land, cut-over land, forest,

grasslands, or woods.]



[Property means personal property or land other than forest land.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Attempted arson is governed by Penal Code section

455, not the general attempt statute found in section 664. (People v.

Alberts (1995) 32 Cal.App.4th 1424, 1427-28 [defendant was convicted

under sections 451 and 664. The higher sentence was reversed because

section 455 governs attempted arson].)



Unlike other arson offenses, there does not appear to be an exception

in attempted arson for burning one's own property. (See Pen. Code, §§

451(d), 452(d).)



AUTHORITY



Elements » Pen. Code, § 455.



Structure, Forest Land, and Maliciously Defined » Pen. Code, § 450.



{170}



RELATED ISSUES



See generally, instructions 1050, Arson and 1060, Unlawfully Causing a

Fire.



{171}



Series 1100 - Sex Offenses



1100 Rape by Force, Fear, or Threats



1105 Rape of an Intoxicated Woman



1108 Rape of an Unconscious Woman



1110 Rape of a Disabled Woman



1114 Rape by Fraud



1120 Oral Copulation By Force, Fear or Threats



1125 Oral Copulation of an Intoxicated Person



1128 Oral Copulation of an Unconscious Person



1130 Oral Copulation of a Disabled Person



1132 Oral Copulation of a Disabled Person in a Mental Hospital



1134 Oral Copulation by Fraud



1135 Oral Copulation While in Custody



{172}



1100. Rape by Force, Fear, or Threats ______ __



The defendant is charged [in Count[s] __] with forcible rape.



You may find the defendant guilty of forcible rape only if the

prosecutor has proven beyond a reasonable doubt that:



1. The defendant had sexual intercourse with a woman.



2. He and woman were not married.



3. The woman did not consent to the intercourse.



AND



4. The defendant accomplished the intercourse:



Alternative 4A -- force and fear



[by force, duress, menace, or fear of immediate and unlawful bodily

injury to the woman or to another person.]



Alternative 4B -- future threats of bodily harm



[by threatening to retaliate against the woman or any other person when

there was a reasonable possibility that the threat would be carried out.

A threat to retaliate is a threat to kidnap, falsely imprison, or

inflict extreme pain, serious bodily injury, or death.]



Alternative 4C -- threat of official action



[by threatening to use the authority of a public official to

incarcerate, arrest, or deport someone. A public official is a person

employed by federal, state, or local government who has authority to

incarcerate, arrest, or deport. The woman must have reasonably believed

that the defendant was a public official even if he was not.]



Sexual intercourse includes any penetration, however slight, of the

woman's vagina by the man's penis.



The burden is on the prosecutor to prove that the woman did not consent.



[A woman consents when she acts freely and voluntarily and knows the

nature of the act or transaction involved.]



{173}



[The fact that the defendant and the woman had a dating or marital

relationship does not necessarily mean that she consented.]



[The fact that the woman (requested/suggested/communicated) that the

defendant use a condom or other birth control device does not

necessarily mean that she consented.]



[Duress is a direct or implied threat of force, danger, or retribution

that causes a reasonable person to do or submit to something she would

not do or submit to otherwise. When deciding whether duress was proved,

consider all the circumstances, including the woman's age and her

relationship to the defendant.]



[Menace means a threat to injure someone.]



[The act was accomplished by force if the defendant used enough physical

force to overcome the woman's will. The force must have been

substantially different from or substantially greater than the force

needed to accomplish intercourse.]



[The act was accomplished by fear if the woman was actually afraid and

her fear was reasonable [or her fear was unreasonable and the defendant

knew of her fear and took advantage of it].]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. If multiple theories of rape are charged, the

definition of sexual intercourse does not have to be given for each type

of rape. If a child is the victim, "girl" should be used instead of

"woman."



Related Instructions



If a defense of mistaken belief in consent is asserted, give instruction

__, Reasonable Belief in Consent.



AUTHORITY



Elements » Pen. Code, § 261.



Duress Defined » Pen. Code, § 261(b).



Menace Defined » Pen. Code, § 261(c).



Force Defined » People v. Bergschneider (1989) 211 Cal.App.3d 144

[amount of force]; People v. Young (1987) 190 Cal.App.3d 248 [same].



Fear Defined » People v. Iniguez (1994) 7 Cal.4th 847 [level of fear].



Consent Defined » Pen. Code, §§ 261.6, 261.7.



{174}



COMMENTARY



This instruction defines intercourse as penetration of the vagina.

However, all that is required is penetration of the genital area. If

this presents an issue, the court should further define penetration.

(See People v. Kaiser (1982) 131 Cal.App.3d 224, 233-34, disapproved on

other grounds by People v. Jones (1988) 46 Cal.3d 585.)



Gender-specific language is used because rape always occurs between a

man and a woman. In keeping with plain English principles, the

committee used those terms to make the instruction clear and concrete.



Penal Code section 261 requires that the intercourse be "against the

will" of the other person. (Pen. Code, § 261.) "Against the will" has

been defined as without consent. (People v. Key (1984) 154 Cal.App.3d

888, 895; see also People v. Young (1987) 190 Cal.App.3d 248, 257.)



The instruction includes definitions of "duress," "menace," and the

sufficiency of "force" and "fear" because those terms have meanings in

the context of rape that are technical and may not be readily apparent

to jurors. (See People v. Bergschneider (1989) 211 Cal.App.3d 144

[force]; People v. Young (1987) 190 Cal.App.3d 248 [force]; People v.

Iniguez (1994) 7 Cal.4th 847 [fear]; Pen. Code, §§ 261(b) [duress] and

(c) [menace].)



The statute uses the term "violence" in addition to "force," "duress,"

"menace," and "fear." (Pen. Code, § 261(a).) Because a finding of

violence necessarily implies a finding of force, the word violence was

not used in the instruction. (See People v. McIlvain (1942) 55

Cal.App.2d 322, 328-29.)



LESSER INCLUDED OFFENSES



Attempted Rape » Pen. Code, §§ 663, 261.



Battery » Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d

1624, 1636; but see People v. Marshall (1997) 15 Cal.4th 1, 38-39

[battery not a lesser included of attempted rape].



Simple Assault » Pen. Code, § 240.



Assault With Intent to Commit Rape » In re Jose (1994) 21 Cal.App.4th

1470, 1477; People v. Moran (1973) 33 Cal.App.3d 724, 730 [where

forcible rape is charged].



RELATED ISSUES



Multiple Rapes A penetration, however slight, completes the crime of

rape; therefore a separate conviction is proper for each penetration

that occurs. (People v. Harrison (1989) 48 Cal.3d 321, 329-34.)



{175}



Resistance Is Not Required



Resistance by the victim is not required for rape; any instruction to

that effect is erroneous. (People v. Barnes (1986) 42 Cal.3d 284, 302.)



Victim Must Be Alive



Rape requires that the victim is alive at the moment of intercourse.

(People v. Ramirez (1990) 50 Cal.3d 1158, 1175-77; People v. Carpenter

(1997) 15 Cal.4th 312, 391.) Intercourse with a deceased victim may

constitute attempted rape if the defendant intended to rape a live

victim. (People v. Kelly (1992) 1 Cal.4th 495, 524-28.)



Withdrawal of Consent



It is unclear whether the defendant is guilty of rape if consent is

given by the woman before or at the moment of penetration, but withdrawn

after the penetration. In People v. Vela (1985) 172 Cal.App.3d 237,

242-44, the court found penetration to be the defining issue and held

that if consent is withdrawn after penetration, the defendant is not

guilty of rape if he continues that act of intercourse. He may, however,

be found guilty of other crimes such as assault or battery. (Ibid.)

Conversely, in People v. Roundtree (1999) 77 Cal.App.4th 846, 851-52,

the court declined to follow Vela and held that once consent is

withdrawn, continuing the act of intercourse is rape. In arriving at its

decision, Roundtree found that rape is concerned with the outrage to the

victim's person and feelings and that any sexual intercourse against a

woman's will is rape regardless of whether she gave consent at the

moment of penetration. (Ibid.)



{176}



1105. Rape of an Intoxicated Woman



The defendant is charged [in Count __] with raping an intoxicated

woman.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant had sexual intercourse with a woman.



2. The defendant and woman were not married.



3. An (intoxicating/anesthetic/controlled) substance prevented the woman

from resisting.



AND



4. The defendant knew or reasonably should have known that the effect of

an (intoxicating/anesthetic/controlled) substance prevented the woman

from resisting.



[______ [if appropriate, insert controlled substance] is a controlled

substance.]



Sexual intercourse includes any penetration, however slight, of the

woman's vagina by the man's penis.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. If a child is the victim, "girl" should be used

instead of "woman." A space has been provided to identify controlled

substances if the parties agree that there is no issue of fact.



AUTHORITY



Elements » Pen. Code, §§ 261(a)(3), 262(a)(2).



{177}



COMMENTARY



This instruction defines intercourse as penetration of the vagina.

However, all that is required is penetration of the genital area. If

this presents an issue, the court should further define penetration.

(See People v. Kaiser (1982) 131 Cal.App.3d 224, 233-34, disapproved on

other grounds by People v. Jones (1988) 46 Cal.3d 585.)



Gender-specific language is used because rape always occurs between a

man and a woman. In keeping with plain English principles, the

committee used those terms to make the instruction clear and concrete.



LESSER INCLUDED OFFENSES



Attempted Rape » Pen. Code, §§ 663, 261.



RELATED ISSUES



See generally, the related issues section under instruction 1100, Rape

by Force, Fear, or Threats.



{178}



1108. Rape of an Unconscious Woman



The defendant is charged [in Count __ ] with raping a woman unconscious

of the nature of the act.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant had sexual intercourse with a woman.



2. He and the woman were not married.



3. The woman was unable to resist because she was unconscious of the

nature of the act.



AND



4. The defendant knew that the woman was unable to resist because she

was unconscious of the nature of the act.



A woman is unconscious of the nature of the act if she (a) is

unconscious or asleep, (b) is not aware that the act is occurring, or

(c) is not aware of the essential characteristics of the act because of

fraud by the perpetrator.



Sexual intercourse includes any penetration, however slight, of the

woman's vagina by the man's penis.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. If a child is the victim, "girl" should be used

instead of "woman."



AUTHORITY



Elements » Pen. Code, §§ 261(a)(3), 262(a)(2), and 263.



COMMENTARY



This instruction defines intercourse as penetration of the vagina.

However, all that is required is penetration of the genital area. If

this presents an issue, the court should



{179}



further define penetration. (See People v. Kaiser (1982) 131 Cal.App.3d

224, 233-34, disapproved on other grounds by People v. Jones (1988) 46

Cal.3d 585.)



The statutory language describing unconsciousness includes "was not

aware, knowing, perceiving, or cognizant that the act occurred." (See

Pen. Code, § 261.) The committee could not perceive any differences

between the statutory terms and therefore used only "aware" in the

instruction. If there is an issue over a particular term, that term

should be inserted in the instruction.



Gender-specific language is used because rape always occurs between a

man and a woman. In keeping with plain English principles, the

committee used those terms to make the instruction clear and concrete.



LESSER INCLUDED OFFENSES



Attempted Rape » Pen. Code, §§ 663, 261.



RELATED ISSUES



See generally, the related issues section under instruction 1100, Rape

by Force, Fear, or Threats.



{180}



1110. Rape of a Disabled Woman



The defendant is charged [in Count __] with raping a mentally or

physically disabled woman.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant had sexual intercourse with a woman.



2. He and the woman were not married.



3. The woman had a (mental disorder/developmental or physical

disability) that prevented her from legally consenting.



AND



4. The defendant knew or reasonably should have known the woman had a

(mental or physical disability) that prevented her from legally

consenting.



A woman is capable of giving legal consent if she has a level of

intelligence that is capable of understanding the act, its nature, and

possible consequences.



Sexual intercourse includes any penetration, however slight, of the

woman's vagina by the man's penis.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. If a child is the victim, "girl" should be used

instead of "woman."



AUTHORITY



Elements » Pen. Code, §§ 261, 263.



COMMENTARY



This instruction defines intercourse as penetration of the vagina.

However, all that is required is penetration of the genital area. If

this presents an issue, the court should



{181}



further define penetration. (See People v. Kaiser (1982) 131 Cal.App.3d

224, 233-34, disapproved on other grounds by People v. Jones (1988) 46

Cal.3d 585.)



Gender-specific language is used because rape always occurs between a

man and a woman. In keeping with plain English principles, the

committee used those terms to make the instruction clear and concrete.



LESSER INCLUDED OFFENSES



Attempted Rape » Pen. Code, §§ 663, 261.



RELATED ISSUES



See generally, the related issues section under instruction 1110, Rape

by Force, Fear, or Threats.



{182}



1114. Rape by Fraud



The defendant is charged [in Count __] with rape by fraud.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant had sexual intercourse with a woman.



2. He and the woman were not married.



3. The woman submitted to the intercourse because she believed the

defendant was her husband.



AND



4. The defendant used a trick, told a lie, or concealed information

intending to make her believe they were married.



Sexual intercourse includes any penetration, however slight, of the

woman's vagina 16 by the man's penis. 17



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. If a child is the victim, "girl" should be used

instead of "woman."



AUTHORITY



Elements » Pen. Code, § 261(a)(5).



COMMENTARY



This instruction has defined intercourse as penetration of the vagina.

However, all that is required is penetration of the genital area. If

this presents an issue, the court should further define penetration.

(See People v. Kaiser (1982) 131 Cal.App.3d 224, 233-34, disapproved on

other grounds by People v. Jones (1988) 46 Cal.3d 585.)



{183}



Gender-specific language is used because rape always occurs between a

man and a woman. In keeping with plain English principles, the

committee used those terms to make the instruction clear and concrete.



LESSER INCLUDED OFFENSES



Attempted Rape » Pen. Code, §§ 663, 261.



RELATED ISSUES



See generally, the related issues section under instruction 1100, Rape

by Force, Fear, or Threats.



{184}



1120. Oral Copulation by Force, Fear, or Threats



The defendant is charged [in Count __] with forcible oral copulation.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant accomplished an act of oral copulation with another

person.



2. The other person did not consent to the act.



AND



3. The defendant accomplished the act:



Alternative 3A -- force and fear



[by force, duress, menace, or fear of immediate and unlawful bodily

injury to any person.]



Alternative 3B -- future threats of bodily harm



[by threatening to retaliate against someone when there was a reasonable

possibility that the threat would be carried out. A threat to retaliate

is a threat to kidnap, unlawfully restrain or confine, or inflict

extreme pain, serious bodily injury, or death.]



Alternative 3C -- threat of official sanction



[by threatening to use the authority of a public official to

incarcerate, arrest, or deport someone. A public official is a person

employed by a government agency who has the authority to incarcerate,

arrest, or deport. The other person must have reasonably believed that

the defendant was a public official even if he or she was not.]



Oral copulation is any contact, no matter how slight, between the mouth

of one person and the sexual organ or anus of another person.

Penetration is not required.



The burden is on the prosecutor to prove that the other person did not

consent.



[A person consents when he or she acts freely and voluntarily and knows

the nature of the act or transaction involved.]



{185}



[The fact that the parties had a dating or marital relationship does not

necessarily mean that the other person consented.]



[The fact that the other person (requested/suggested/communicated) that

the defendant use a condom or other birth control device does not

necessarily mean that (he/she) consented.]



[Duress is a direct or implied threat of force, danger, or retribution

that causes a reasonable person to do or submit to something that he or

she would not otherwise do. When deciding whether there was duress,

consider all the circumstances, including the age of the other person

and (his/her) relationship to the defendant.]



[Menace means a threat to injure someone.]



[The act was accomplished by force if the defendant used enough physical

force to overcome the other person's will. The force must have been

substantially different from or substantially greater than the force

needed simply to accomplish the act.]



[The act was accomplished by fear if the other person was actually

afraid and (his/her) fear was reasonable] [or] [(his/her) fear was

unreasonable and the defendant knew of (his/her) fear and took advantage

of it].



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



Related Instructions



If a defense of mistaken belief in consent is asserted, give instruction

__, Reasonable Belief in Consent.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



Duress Defined » Pen. Code, § 261(b).



Menace Defined » Pen. Code, § 261(c).



Force Defined » People v. Senior (1992) 3 Cal.App.4th 765, 774 [amount

of force]; People v. Young (1987) 190 Cal.App.3d 248 [in context of

rape].



Fear Defined » People v. Reyes (1984) 153 Cal.App.3d 803; People v.

Iniguez (1994) 7 Cal.4th 847 [in context of rape].



{186}



Consent Defined » Pen. Code, §§ 261.6, 267.1.



COMMENTARY



Penal Code section 288a requires that the intercourse be "against the

will" of the other person. (Pen. Code, § 288a.) "Against the will" has

been defined as "without consent." (People v. Key (1984) 154 Cal.App.3d

888, 895; see also People v. Young (1987) 190 Cal.App.3d 248, 257.)



The instruction includes definitions of "duress," "menace," and the

sufficiency of "force" and "fear" because those terms have meanings in

the context of oral copulation that are technical and may not be

readily apparent to jurors. (See People v. Senior (1992) 3 Cal.App.4th

765, 774 [force]; People v. Bergshneider (1989) 211 Cal.App.3d 144,

152- 53 [force]; People v. Reyes (1984) 153 Cal.App.3d 803, 810 [fear];

People v. Iniguez (1994) 7 Cal.4th 847, 856-57 [fear in context of

rape].)



Penal Code section 288a does not explicitly define duress and menace.

The definitions of these terms are based on the statutory definitions

contained in Penal Code sections 261 and 262 [rape]. When describing

acts of rape and oral copulation by force, both statutes use the same

language requiring that the act be accomplished "by means of force,

violence, duress, menace, or fear of immediate and unlawful bodily

injury on the victim." If a definition of duress and menace is

requested, the definition provided in the rape statute should, by

analogy, be applicable to the same terms used in the oral copulation

statute. (Frediani v. Ota (1963) 215 Cal.App.2d 127, 133 [when

interpreting a term used in several similar statutes, reference to

those other statutes may provide guidance in interpreting the term in

the instant statute].) No authority mandates that either term must be

defined for the jury.



The statute uses the term "violence" in addition to "force," "duress,"

"menace," and "fear." (Pen. Code, § 261(a).) Because a finding of

violence necessarily implies a finding of force, the word violence was

not used in the instruction. (See People v. McIlvain (1942) 55

Cal.App.2d 322, 328-29.)



LESSER INCLUDED OFFENSES



Attempted Oral Copulation » Pen. Code, §§ 663, 288a.



Battery » Pen. Code, § 242.



Simple Assault » Pen. Code, § 240.



{187}



RELATED ISSUES



See generally, the related issues section under instruction 1100, Rape

by Force, Fear, or Threats.



Multiple Acts of Oral Copulation



An accused may be convicted for multiple, nonconsensual sex acts of an

identical nature that follow one another in quick, uninterrupted

succession. (People v. Catelli (1991) 227 Cal.App.3d 1434, 1446-47

[defendant properly convicted of multiple violations of Pen. Code, §

288a where he interrupted the acts of copulation and forced victims to

change positions].)



Sexual Organ



A man's "sexual organ" for purposes of Penal Code section 288a includes

the penis and the scrotum. (Pen. Code, § 288a; People v. Catelli (1991)

227 Cal.App.3d 1434, 1448.)



{188}



1125. Oral Copulation of an Intoxicated Person



The defendant is charged [in Count __] with oral copulation of an

intoxicated person.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant engaged in oral copulation with another person.



2. An (intoxicating/anesthetic/controlled) substance prevented the other

person from resisting.



AND



3. The defendant knew or reasonably should have known that the effect of

an (intoxicating/anesthetic/controlled) substance prevented the other

person from resisting.



[______ [if appropriate, insert controlled substance] is a controlled

substance.]



Oral copulation is any contact, no matter how slight, between the mouth

of one  person and the sexual organ or anus of another person.

Penetration is not required.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. A space has been provided to identify controlled

substances if the parties agree that there is no issue of fact.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



LESSER INCLUDED OFFENSES



Attempted Oral Copulation » Pen. Code, §§ 663, 288a.



{189}



RELATED ISSUES



See generally, the related issues section under instructions 1120, Oral

Copulation by Force, Fear, or Threats and 1100, Rape by Force, Fear, or

Threats.



{190}



1128. Oral Copulation of an Unconscious Person



The defendant is charged [in Count __] with oral copulation of an

unconscious person.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant engaged in an act of oral copulation with another7

person.



2. The other person was unable to resist because (he/she) was

unconscious of the nature of the act.



AND



3. The defendant knew that the other person was unable to

resist because (he/she) was unconscious of the nature of the act.



A person is unconscious of the nature of the act if he or she (a) is

unconscious or asleep, (b) is not aware that the act is occurring, or

(c) is not aware of the essential characteristics of the act because of

fraud by the perpetrator.



Oral copulation is any contact, no matter how slight, between the mouth

of one person and the anus or sexual organ of another person.

Penetration is not required.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



COMMENTARY



The statutory language describing unconsciousness includes "was not

aware, knowing, perceiving, or cognizant that the act occurred." (See

Pen. Code, § 288a(f).) The committee could not perceive any difference

between the statutory terms and therefore



{191}



used "aware" in the instruction. If there is an issue over a particular

term, that term should be inserted in the instruction.



LESSER INCLUDED OFFENSES Attempted Oral Copulation » Pen. Code, §§ 663,

288a.



RELATED ISSUES See generally, the related issues section under

instructions 1120, Oral Copulation by Force, Fear, or Threats and 1100,

Rape by Force, Fear, or Threats.



192



1130. Oral Copulation of a Disabled Person



The defendant is charged [in Count __] with oral copulation of a

mentally or physically disabled person.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant engaged in an act of oral copulation with another

person.



2. The other person had a (mental disorder/developmental or physical

disability) that prevented (him/her) from legally consenting.



AND



3. The defendant knew or reasonably should have known that the other

person had a (mental or physical disability) that prevented (him/her)

from legally consenting.



A person is capable of giving legal consent if he or she has a level of

intelligence that is capable of understanding the act, its nature, and

possible consequences.



Oral copulation is any contact, no matter how slight, between the mouth

of one person and the sexual organ or anus of another person.

Penetration is not required.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



LESSER INCLUDED OFFENSES



Attempted Oral Copulation » Pen. Code, §§ 663, 288a.



{193}



RELATED ISSUES



See generally, the related issues section under instructions 1120, Oral

Copulation by Force, Fear, or Threats and 1100, Rape by Force, Fear, or

Threats.



{194}



1132. Oral Copulation of a Disabled Person in a Mental Hospital



The defendant is charged [in Count __] with oral copulation of a

mentally or physically disabled person in a mental hospital.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant engaged in an act of oral copulation with another

person.



2. The other person had a (mental disorder/developmental or physical

disability) that prevented (him/her) from legally consenting.



3. The defendant knew or reasonably should have known that the other

person had a (mental or physical disability) that prevented (him/her)

from legally consenting.



AND



4. At the time of the act, both people were confined in a state hospital

or other mental health facility.



A person is capable of giving legal consent if he or she has a level of

intelligence that is capable of understanding the act, its nature, and

possible consequences.



Oral copulation is any contact, no matter how slight, between the mouth

of one person and the sexual organ or anus of another person.

Penetration is not required.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



Legal Consent » People v. Boggs (1930) 107 Cal.App. 492, 495-96.



{195}



LESSER INCLUDED OFFENSES



Attempted Oral Copulation » Pen. Code, §§ 663, 288a.



RELATED ISSUES



See generally, the related issues section under instructions 1120, Oral

Copulation by Force, Fear, or Threats and 1100, Rape by Force, Fear, or

Threats.



{196}



1134. Oral Copulation by Fraud



The defendant is charged [in Count __] with oral copulation by fraud.



You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant engaged in an act of oral copulation with another

person.



2. The other person submitted to the oral copulation because (he/she)

believed the person was (his/her) spouse.



AND



3. The defendant used a trick, told a lie, or concealed information

intending to make the other person believe they were married.



Oral copulation is any contact, no matter how slight, between the mouth

of one person and the sexual organ or anus of another person.

Penetration is not required.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



LESSER INCLUDED OFFENSES



Attempted Oral Copulation » Pen. Code, §§ 663, 288a.



RELATED ISSUES



See generally, the related issue section under instruction, 1120, Oral

Copulation by Force, Fear, or Threats and 1100, Rape by Force, Fear or

Threats.



{197}



1135. Oral Copulation While in Custody



The defendant is charged [in Count __] with oral copulation committed

while (he/she) was confined in (state prison/a local detention

facility).



You may find the defendant guilty of this crime only if the prosecutor

has beyond a reasonable doubt that:



1. The defendant engaged in an act of oral copulation with another

person.



AND



2. At the time of the act, the defendant was confined in a state prison,

jail, or other detention facility.



[______ [insert name of facility]] is a (local detention facility/state

prison).



Oral copulation is any contact, no matter how slight, between the mouth

of one person and the sexual organ or anus of another person.

Penetration is not required.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. If there is a factual dispute about whether the

institution is a local detention facility or state prison, further

instruction should be given defining both using Penal Code sections 4054

and 6031.4.



AUTHORITY



Elements » Pen. Code, § 288a.



Oral Copulation Defined » People v. Grim (1992) 9 Cal.App.4th 1240,

1242-43.



LESSER INCLUDED OFFENSES



Attempted Oral Copulation » Pen. Code, §§ 663, 288a.



{198}



RELATED ISSUES



See generally, the related issues section under instructions 1120, Oral

Copulation by Force, Fear, or Threats and 1100, Rape by Force, Fear, or

Threats.



{199}



Series 1300 - Theft



1300. Theft by Larceny



1305. Theft: Degrees



1308. Theft by False Pretense



1310. Theft by Trick



1312. Theft by Embezzlement



{200}



1300. Theft by Larceny



The defendant is charged [in Count ______ ] with [grand] [petty] theft

[by larceny].



You may find the defendant guilty of [grand] [petty] theft [by larceny]

only if the prosecutor has proven beyond a reasonable doubt that:



1. The defendant took property that (he/she) knew was owned by someone

else.



2. (He/She) took the property without the owner's consent.



3. When (he/she) took the property, (he/she) intended to deprive the

owner of it permanently.



AND



4. (He/She) kept the property for any length of time.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



If the property stolen is money, the court may want to substitute that

word instead of property in the elements.



Related Instructions



If the defendant is charged with grand theft, also give instruction

1305, Theft: Degrees. If the defendant is charged with petty theft, no

other instruction is required, and the jury should receive a petty theft

verdict form. If a different theory of theft is presented, see

instructions 1308, Theft by False Pretenses; 1310, Theft by Trick; and

1312, Theft by Embezzlement. The court may also wish to instruct with

the bracketed [by larceny] in the first sentence to distinguish this

theory of theft from the others.



AUTHORITY



Elements » Pen. Code, § 484; People v. Williams (1946) 73 Cal.App.2d

154, 157; People v. Edwards (1925) 72 Cal.App. 102, 112-17, disapproved

on other grounds in In re Estrada (1965) 63 Cal.2d 740, 748.



{201}



LESSER INCLUDED OFFENSES



Petty Theft » Pen. Code, § 486.



Attempted Theft » Pen. Code, §§ 663, 484.



Taking an Automobile Without Consent » Veh. Code, § 10851; People v.

Pater (1968) 267 Cal.App.2d 921, 926.



Auto Tampering » Veh. Code, § 10852; People v. Anderson (1975) 15 Cal.3d

806, 810-11.



Misdemeanor Joyriding » Pen. Code, § 499b.



Petty theft is a not lesser-included offense of grand theft when the

charge of grand theft is based on the type of property taken. (People

v. Thomas (1974) 43 Cal.App.3d 862, 870.)



RELATED ISSUES



Asportation



To constitute a completed theft, the property must be asported or

carried away. (People v. Shannon (1998) 66 Cal.App.4th 649, 654.)

Asportation requires three things (1) the goods are severed from the

possession or custody of the owner, (2) the goods are in the complete

possession of the thief or thieves, and (3) the property is moved,

however slightly. (Ibid.; People v. Edwards (1925) 72 Cal.App. 102,

114-15, disapproved on other grounds in In re Estrada (1965) 63 Cal.2d

740; People v. Quiel (1945) 68 Cal.App.2d 674, 679; People v. Collins

(1959) 172 Cal.App.2d 295, 299 [joint possession of property by more

than one thief].)



Claim of Right



If a person honestly believes that he or she has a right to the property

even if that belief is mistaken or unreasonable, such belief is a

defense to theft. (People v. Romo (1990) 220 Cal.App.3d 514, 518; see

also, People v. Devine (1892) 95 Cal. 227, 229 ["[i]t is clear that a

charge of larceny, which requires an intent to steal, could not be

founded on a mere careless taking away of another's goods"]; In re

Bayles (1920) 47 Cal.App. 517 [larceny conviction reversed where

landlady actually believed she was entitled to take tenant's property

for cleaning fees incurred even if her belief was unreasonable]; People

v. Navarro (1979) 99 Cal.App.3d Supp. 1; see instruction __, Claim of

Right.)



Community Property



A person may be found guilty of theft of community property, but only if

he or she has the intent to deprive the other owner of the property

permanently. (People v. Llamas (1997) 51 Cal.App.4th 1729, 1738-40.)



{202}



Fraudulent Refunds



A person who takes property while in a store and presents it for a

refund is guilty of theft. (People v. Davis (1998) 19 Cal.4th 301.) The

Supreme Court held that taking with the intent to fraudulently obtain a

refund constitutes both an intent to permanently deprive the store of

property and a trespassory taking within the meaning of larceny. (Id. at

pp. 317-18; see also People v. Shannon (1998) 66 Cal.App.4th 649.)



Multiple or Single Conviction of Theft -- Overall Plan or Scheme



If multiple items are stolen from a single victim over a period of time

and the takings are part of one intent, plan, or impulse, only one theft

occurs and the value of the items is aggregated when determining the

degree of theft. (People v. Bailey (1961) 55 Cal.2d 514, 518-19; accord

People v. Sullivan (1978) 80 Cal.App.3d 16, 19-21; see instruction 1305,

Theft: Degrees.)



Where multiple victims are involved, there is disagreement about

applying the Bailey doctrine and cumulating the charges if a single

plan or intent is demonstrated. (See People v. Brooks (1985) 166

Cal.App.3d 24, 30 [auctioneer stole proceeds from property belonging to

several people during a single auction; conviction for multiple counts

of theft was error]; and People v. Columbia Research Corp. (1980) 103

Cal.App.3d Supp. 33 [series of petty thefts from numerous victims

occurring over 10 month period properly consolidated into single grand

theft conviction where defendant employed same scheme to defraud

victims of money]; but see People v. Garcia (1990) 224 Cal.App.3d 297,

307- 09 [defendant filed fraudulent bonds at different times involving

different victims; multiple convictions proper].)



No Need to Use or Benefit From the Property Taken



It does not matter that the person taking the property does not intend

to use the property or benefit from it; he or she is guilty of theft if

there is intent to permanently deprive the other person of the property.

(People v. Kunkin (1973) 9 Cal.3d 245, 251; People v. Green (1980) 27

Cal.3d 1, 57-58 [defendant intended to destroy the property]; People v.

Pierce (1952) 110 Cal.App.2d 598, 609 [irrelevant that defendant did not

personally benefit from embezzled funds].)



Possession



The victim of a theft does not have to be the owner of property, only in

possession of it. (People v. Edwards (1925) 72 Cal.App. 102, 116.)

"Considered as an element of larceny, "ownership" and "possession" may

be regarded as synonymous terms; for one who has the right of possession

as against the thief is, so far as the latter is concerned, the owner."

(Ibid; see also People v. Davis (1893) 97 Cal. 194, 195 [fact that

property in possession of victim sufficient to show ownership].)



{203}



Unanimity of Theft Theory not Required



If multiple theories of theft have been presented, the jury does not

need to agree on which form of theft was committed. All the jury must

agree on is that an unlawful taking of property occurred. (People v.

Counts (1995) 31 Cal.App.4th 785, 792-93; People v. Failla (1966) 64

Cal.2d 560, 567-69 [burglary case]; People v. Nor Woods (1951) 37 Cal.2d

584, 586 [addressing the issue for theft].)



Value



The property taken must have some intrinsic value, however slight.

(People v. Franco (1970) 4 Cal.App.3d 535, 542.)



{204}



1305. Theft: Degrees



If you conclude the defendant committed a theft, you must decide whether

the crime was grand theft or petty theft.



[Theft of (fruit/nuts/fish/______) worth more than $100 is grand theft.]



[Theft of (a[n] automobile/firearm/horse/______) is grand theft.]



[Theft of property from the body or of clothing worn by a person [or

from a container being held or carried by a person] is grand theft, no

matter how much the property is worth.]



[The defendant committed grand theft if (he/she) stole property [or

services] worth more than $400. The defendant committed petty theft if

(he/she) stole property [or services] worth $400 or less.]



[The value of (property/services) is the fair (market value of the

property/market wage for the services performed).



Fair Market Value -- Generally



[Fair market value is the highest price the property would reasonably

have been sold for in the open market at the time and general location

of the theft.]



Fair Market Value -- Urgent Sale



[Fair market value is the price a reasonable buyer and seller would

agree on if the buyer wanted to buy the property and the seller wanted

to sell it, but neither was under an urgent need to buy or sell.]



All other theft is petty theft.



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction if grand theft

has been charged.



If the evidence raises an issue that the value of the property may be

inflated or deflated because of some urgency on the part of either the

buyer or seller, the second bracketed paragraph on fair market value

should be given.



{205}



AUTHORITY



Determination of Degrees » Pen. Code, §§ 486, 487-488.



COMMENTARY



The committee decided to include in the instruction, those definitions

of grand theft that are most often charged. The statute contains other

definitions of grand theft and should be referred to if the prosecutor

is relying on another theory.



RELATED ISSUES



Taking From the Person To constitute a taking from the person, the

property must, in some way, be physically attached to the person.

(People v. Williams (1992) 9 Cal.App.4th 1465, 1472.) Applying this

rule, the court in Williams held that a purse taken from the passenger

seat next to the driver was not a taking from the person. (Ibid. [see

generally for court's discussion of origins of this rule].) In contrast,

Williams was distinguished by the court in People v. Higgins (1997) 51

Cal.App.4th 1654, 1656-57, where evidence that the defendant took a

purse placed on the floor next to and touching the victim's foot was

held sufficient to establish a taking from the person. The victim

intentionally placed her foot next to her purse, physically touching it

and thereby maintaining dominion and control over it.



{206}



1308. Theft by False Pretense



The defendant is charged [in Count ___] with theft by false pretense.

You may find the defendant guilty of this crime only if the prosecutor

has proven beyond a reasonable doubt that:



1. The defendant knowingly and intentionally deceived a property owner

[or the owner's agent] by false or fraudulent representation or

pretense.



2. The defendant did so intending to persuade the owner [or the owner's

agent] to let the defendant take possession of and title to the

property.



3. The owner [or the owner's agent] let the defendant have the property

because the owner [or the owner's agent] relied on the representation or

pretense.



AND



4. When the defendant got the property, (he/she) intended to deprive the

owner of it permanently.



You cannot find the defendant guilty of this crime unless one of the

following is also true:



A. The false pretense was accompanied by either a writing or false

token; or



B. There was a note or memorandum of the pretense signed or handwritten

by the defendant; or



C. The pretense was proven by either testimony from two witnesses or

testimony from a single witness along with other evidence supporting the

conclusion that the defendant made the pretense.



A false pretense is any act, word, symbol, or token whose purpose is to

deceive. [The pretense may be made directly or by implication. A person

may make a false pretense by not disclosing information when there is an

obligation to, or by giving information that is likely to mislead, if by

doing either he or she intends to deceive.]



A false token is a document or object that is not authentic, but appears

to be, and is used to deceive.



{207}



[An owner [or an owner's agent] relies on false pretence, if the

falsehood is an important part of the reason the owner [or agent]

decides to give up the property. The false pretense must be an important

factor, but it does not have to be the only factor the owner [or agent]

considered in making the decision.] [A false pretense is considered to

be continuing so that an owner [or agent] who gives up property some

time after the pretense was originally made still relies on the

pretense.]



[A false pretense may be a false promise or a misrepresentation of fact.

In either case, the defendant's intent to deceive must be proven by

something more than just the false nature of the representation or the

failure to perform the promise.]



[An agent is a person to whom the owner has given [complete or partial]

authority and control over the owner's property.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to instruct on the elements of this

crime, including the corroboration requirements stated in Penal Code

section 532(b). (People v. Mason (1973) 34 Cal.App.3d 281, 286 [error

not to instruct on corroboration requirements].)



If the property stolen is money, the court may want to substitute that

word instead of property in the elements.



Related Instructions



If the defendant is charged with grand theft, also give instruction 1305

Theft: Degrees. If the defendant is charged with petty theft, no other

instruction is required, and the jury should receive a petty theft

verdict form.



AUTHORITY



Elements » Pen. Code § 484; People v. Wooten (1996) » Cal.App.4th 1834,

1842.



Corroboration Requirements » Pen. Code § 532(b); People v. Gentry (1991)

234 Cal.App.3d 131, 139; People v. Fujita (1974) 43 Cal.App.3d 454,

470-71.



Reliance » People v. Wooten, supra, » Cal.App.4th at pp. 1842-43

[defining reliance]; People v. Sanders (1998) 67 Cal.App.4th 1403, 1413

[reversible error to fail to instruct on reliance]; People v. Whight

(1995) 36 Cal.App.4th 1143, 1152.



Agent » People v. Britz (1971) 17 Cal.App.3d 743, 752.



{208}



LESSER INCLUDED OFFENSES



Petty Theft » Pen. Code, § 486.



Attempted Theft » Pen. Code, §§ 663, 484.



RELATED ISSUES



See generally, the related issues section under instruction 1300, Theft

by Larceny.



Attempted Theft by False Pretense



Reliance on the false pretense does not have to be proven for a person

to be guilty of attempted theft by false pretense. (People v. Fujita

(1974) 43 Cal.App.3d 454, 467.)



Continuing Nature of False Pretense



Penal Code section 484 recognizes that theft by false pretense is crime

of a continuing nature and covers any "property or service received as a

result thereof, and the complaint, information or indictment may charge

that the crime was committed on any date during the particular period in

question." (Pen. Code, § 484(a).)



Corroboration - Defined/Multiple Witnesses



"Corroborating evidence is sufficient if it tends to connect the

defendant with the commission of the crime in such a way so as to

reasonably satisfy the jury that the complaining witness is telling the

truth." (People v. Fujita (1974) 43 Cal.App.3d 454, 470.) When

considering if the pretense is corroborated the jury may consider "the

entire conduct of the defendant, and his declarations to other persons."

(People v. Wymer (1921) 53 Cal.App. 204, 206.) The test for

corroboration of false pretense is the same as the test for

corroborating the testimony of an accomplice in Penal Code section 1111.

(Ibid.; see also People v. MacEwing (1955) 45 Cal.2d 218, 224.) To

establish corroboration by multiple witnesses, the witnesses do not have

to testify to the same false pretense. The requirement is satisfied as

long as they testify to the same scheme or type of false pretense.

(People v. Gentry (1991) 234 Cal.App.3d 131, 139; People v. Ashley

(1954) 42 Cal.2d 246, 268.)



Distinguished from Theft by Trick



Although fraud is used to obtain the property in both theft by trick and

theft by false pretense, in theft by false pretense, the thief obtains

both possession and title to the property. For theft by trick, the thief

gains only possession of the property. (People v. Ashley (1954) 42

Cal.2d 246, 258; People v. Randono (1973) 32 Cal.App.3d 164, 172.) False

pretenses does not require that the title pass perfectly and the victim

may even retain a security interest in the property transferred to the

defendant. (People v. Counts (1995) 31 Cal.App.4th 785, 789-92.)



{209}



Fraudulent Checks



If a check is the basis for the theft by false pretense, it cannot also

supply the written corroboration required by statute. (People v. Mason

(1973) 34 Cal.App.3d 281, 288.)



Genuine Writings



A genuine writing that is falsely used is not a false token. (People v.

Beilfuss (1943) 59 Cal.App.2d 83, 91 [valid check obtained by fraud not

object of theft by false pretense].)



Implicit Misrepresentations



The misrepresentation does not have to be made in an express statement;

it may be implied from behavior or other circumstances. (People v. Mace

(1925) 71 Cal.App. 10, 21; People v. Randono (1973) 32 Cal.App.3d 164,

174-75 [analogizing to the law of implied contracts].)



Non-Performance of a Promise is Insufficient to Prove a False Pretense



The pretense may be made about a past or present fact or about a

promise to do something in the future. (People v. Ashley (1954) 42

Cal.2d 246, 259-65.) If the pretense relates to future actions,

evidence of non-performance of the promise is not enough to establish

the falsity of a promise. (People v. Fujita (1974) 43 Cal.App.3d 454,

469.) The intent to defraud at the time the promise is made must be

demonstrated. As the court in Ashley stated, "[w]hether the pretense is

a false promise or a misrepresentation of fact, the defendant's intent

must be proved in both instances by something more than mere proof of

non-performance or actual falsity." (People v. Ashley, supra, at p. 264

[court also stated that defendant is entitled to instruction on this

point but did not characterize duty as sua sponte].)



{210}



1310. Theft by Trick



The defendant is charged [in Count ___ ] with theft by trick.



You may find the defendant guilty of theft by trick only if the

prosecutor has proven beyond a reasonable doubt that:



1. The defendant obtained property that (he/she) knew was owned by

someone else.



2. (He/She) obtained the property with the owner's [or the owner's

agent's] consent, but got that consent by fraud or deceit.



3. When (he/she) obtained the property, (he/she) intended to deprive the

owner of it permanently.



AND



4. (He/She) kept the property for any length of time.



[Getting the owner's [or the owner's agent's] consent to use the

property for a specified purpose while intending to use it in a

different way constitutes fraud or deceit.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



If the property stolen is money, the court may want to substitute that

word instead of property in the elements.



Related Instructions



If the defendant is charged with grand theft, also give instruction

1305, Theft: Degrees. If the defendant is charged with petty theft, no

other instruction is required, and the jury should receive a petty theft

verdict form.



AUTHORITY



Elements of Theft » Pen. Code, § 484.



{211}



LESSER INCLUDED OFFENSES



Petty Theft » Pen. Code, § 486.



Attempted Theft » Pen. Code, §§ 663, 484.



RELATED ISSUES



Distinguished From Theft by False Pretense



Although fraud is used to obtain the property in both theft by trick and

theft by false pretense, in theft by false pretense, the thief obtains

both possession and title to the property. For theft by trick, the thief

gains only possession of the property. (People v. Ashley (1954) 42

Cal.2d 246, 258; People v. Randono (1973) 32 Cal.App.3d 164, 172.)



{212}



1312. Theft by Embezzlement



The defendant is charged [in Count ___] with theft by embezzlement.



You may find the defendant guilty of theft by embezzlement only if the

prosecutor has proven beyond a reasonable doubt that:



1. An owner [or the owner's agent] entrusted (his/her) property to the

defendant to (use/manage/administer) for the owner's benefit.



2. The owner entrusted (his/her) property to the defendant because

(he/she) had trust and confidence in the defendant to act reliably and

honestly with respect to the property.



3. The defendant (converted/used) that property for (his/her) own

benefit, and not the benefit of the original owner.



AND



4. At the time, the defendant intended to deprive the owner of the

property for any period of time.



[An agent is a person to whom the owner has given [complete or partial]

authority and control over the owner's property.]



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime.



If the property stolen is money, the court may want to substitute that

word instead of property in the elements.



Related Instructions



If the defendant is charged with grand theft, give instruction 1305

Theft: Degrees. If the defendant is charged with petty theft, no other

instruction is required, and the jury should receive a petty theft

verdict form.



{213}



AUTHORITY



Elements » Pen. Code, §§ 484, 503-515; People v. Wooten (1996) »

Cal.App.4th 1835, 1845.



LESSER INCLUDED OFFENSES



Petty Theft » Pen. Code, § 486.



Attempted Theft » Pen. Code, §§ 663, 484.



RELATED ISSUES



Alter Ego Defense



A partner can be guilty of embezzling from his own partnership. "Though

[the Penal Code] requires that the property be `of another' for larceny,

[it] does not require that the property be `of another' for

embezzlement. (Pen. Code, § 484.) "It is both illogical and unreasonable

to hold that a partner cannot steal from his partners merely because he

has an undivided interest in the partnership property. Fundamentally,

stealing that portion of the partners' shares which does not belong to

the thief is no different from stealing the property of any other

person. (People v. Sobiek (1973) 30 Cal.App.3d 458, 468.)



Fiduciary Relationships



Courts have held that creditor/debtor and employer/employee

relationships are not presumed to be fiduciary relationships in the

absence of other evidence of trust or confidence. (People v. Wooten

(1996) 44 Cal.App.4th 1834, 1846 [creditor/debtor]; People v. Threestar

(1985) 167 Cal.App.3d 747, 759 [employer/employee].)



{214}



Series 1400 - Burglary



1400. Burglary



1405. Burglary: Degrees



{215}



1400. Burglary



The defendant is charged [in Count __] with burglary.



You may find the defendant guilty of burglary only if the prosecutor has

proven beyond a reasonable doubt that:



1. The defendant entered a (building/locked vehicle/______ [insert other

statutory target]).



AND



2. When (he/she) entered the (building/locked vehicle/_ ______[insert

other statutory target]), (he/she) intended to commit a (theft/rape

/______[insert other felony]).



Alternative A - Theft



[The defendant intended to commit theft if (he/she) intended to take

property owned by someone else without the owner's consent, to deprive

the owner of it permanently, and to keep the property for any length of

time.]



Alternative B - Rape



[The defendant intended to commit rape if he intended to have sexual

intercourse with a woman who was not his wife, without her consent and

by force, duress, menace, or fear of immediate and unlawful bodily

injury to her or to another person.]



[The defendant does not actually have to commit the intended (theft/rape

______ [insert other felony]).]



[The prosecution alleges that the defendant intended to commit either

______ [insert first felony] or ______ [insert second felony]. You may

not find the defendant guilty of burglary unless you all agree that

(he/she) intended to commit one of those crimes at the time of the

entry. You need not all agree upon which one of those crimes (he/she)

intended.]



{216}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction defining the

elements of the crime. Although actual commission of the underlying

theft or felony is not an element of burglary (People v. Montoya (1994)

7 Cal.4th 1027, 1041-42), the court has a sua sponte duty to instruct

that the defendant must have intended to commit a felony. (People v.

Smith (1978) 78 Cal.App.3d 698, 706.) In People v. Failla (1966) 64

Cal.2d 560, 564 the court imposed a sua sponte duty to define the

elements of the underlying felony or theft when there was a factual

issue whether the defendant's intended acts amounted to a felony or a

misdemeanor. The committee recommends that the court define the elements

of the underlying felony sua sponte in all cases.



This instruction includes the more common target felonies of theft and

rape. If the prosecutor relies on a different felony, the court should

tailor the elements of that felony using theft and rape as a model.



If the area alleged to have been entered is something other than a

building or locked vehicle, insert the appropriate statutory target in

the blank. Penal Code section 459 specifies the structures and places

that may be the targets of burglary. The list includes a house, room,

apartment, tenement, shop, warehouse, store, mill, barn, stable,

outhouse or other building, tent, vessel, floating home as defined in

Health and Safety Code section 18075.55 (d), railroad car, locked or

sealed cargo container whether or not mounted on a vehicle, trailer

coach as defined in Vehicle Code section 635, house car as defined in

Vehicle Code section 362, inhabited camper as defined in Vehicle Code

section 243, locked vehicle as defined by the Vehicle Code, aircraft as

defined in Public Utilities Code section 21012, or mine or any

underground portion thereof. (See Pen. Code, § 459.)



The jury does not have to unanimously agree upon the specific felony

intended so long as they agree that the defendant entered with

felonious intent. If the prosecutor is relying on more than one felony,

the final bracketed paragraph explains this principle to the jury.

(People v. Failla (1966) 634 Cal.2d 560, 568-69.)



Related Instructions



If the defendant is charged with first degree burglary, give instruction

1405, Burglary: Degrees. If the defendant is charged with second degree

burglary, no other instruction is required and the jury should receive a

second degree burglary verdict form.



{217}



AUTHORITY



Elements » Pen. Code, § 459.



Instructional Requirements » People v. Failla (1966) 634 Cal.2d 560,

564, 568-569; People v. Smith (1978) 78 Cal.App.3d 698, 706-711; People

v. Montoya (1994) 7 Cal.4th 1027, 1041-42.



LESSER INCLUDED OFFENSES



Attempted Burglary » Pen. Code, §§ 663, 459.



Tampering With a Vehicle » Veh. Code, § 10852; People v. Mooney (1983)

145 Cal.App.3d 502, 504-07 [if burglary of automobile charged].



RELATED ISSUES



Auto Burglary - Entry of Locked Vehicle



Under Penal Code section 459 forced entry of a locked vehicle

constitutes burglary. Under existing case law, an entry within the

meaning of section 459 includes entry into a locked vehicle with the

requisite intent, whether it is entry through a door, window, or trunk.

(People v. Young K. (1996) 49 Cal.App.4th 861, 863.) However, there must

be, evidence of forced entry. (See People v. Woods (1980) 112 Cal.App.3d

226, 228-32 [if entry occurs through window deliberately left open, some

evidence of forced entry must exist for burglary conviction]; People v.

Malcolm (1975) 47 Cal.App.3d 217, 220 [pushing open broken wing lock on

window, reaching one's arm inside vehicle, and unlocking car door

evidence of forced entry].)



Auto Burglary - Definition of Locked



To lock, for purposes of auto burglary, is "to make fast by interlinking

or interlacing of parts ... [such that] some force [is] required to

break the seal to permit entry ..." (In re Lamont (1988) 200 Cal.App.3d

244, 247, quoting People v. Massie (1966) 241 Cal.App.2d 812, 817

[vehicle was not locked where chains were wrapped around the doors and

hooked together]; compare People v. Malcolm (1975) 47 Cal.App.3d 217,

220- 223 [vehicle with locked doors but broken wing lock that prevented

window from being locked, was for all intents and purposes a locked

vehicle].)



Auto Burglary - Intent to Steal



Breaking into a locked car with the intent to steal the vehicle

constitutes auto burglary. (People v. Teamer (1993) 20 Cal.App.4th 1454,

1457-58; see also People v. Blalock (1971) 20 Cal.App.3d 1078, 1082

[auto burglary includes entry into locked trunk of vehicle].) However,

breaking into the headlamp housings of an automobile with the intent to

steal the headlamps is not auto burglary. (People v. Young K. (1996) 49

Cal.App.4th



{218}



861, 864 [stealing headlamps, windshield wipers or hubcaps are thefts

(or attempted thefts) or auto tampering or acts of vandalism, not

burglaries].)



Building



A building has been defined for purposes of burglary as "any structure

which has walls on all sides and is covered by a roof." (In re Amber

(1995) 33 Cal.App.4th 185, 187.) Courts have construed "building"

broadly and found the following structures sufficient for purposes of

burglary: a telephone booth, a popcorn stand on wheels, a powder

magazine dug out of a hillside, a wire chicken coop, and a loading dock

constructed of chain link fence. (People v. Brooks (1982) 133 Cal.App.3d

200, 205 (citations omitted.) However, the definition of building is not

without limits and courts have focused on "whether the nature of a

structure's composition is such that a reasonable person would expect

some protection from unauthorized intrusions." (In re Amber (1995) 33

Cal.App.4th 185, 187 [open pole barn is not a building]; and see People

v. Knight (1988) 204 Cal.App.3d 1420, 1423-24 [electric company's "gang

box," a container large enough to hold people, is not a building. Court

noted that this property is protected in other sections of the Penal

Code].)



Burglarizing One's Own Home -- Possessory Interest



A person cannot burglarize his own home as long as he has an

unconditional possessory right of entry. (People v. Gauze (1975) 15

Cal.3d 709, 714.) However, a family member who has moved out of the

family home, commits burglary if he makes an unauthorized entry with a

felonious intent, since he has no claim of a right to enter that

residence. (In re Richard (1988) 205 Cal.App.3d 7, 15-16 [defendant, who

lived at youth rehabilitation center, properly convicted of burglary for

entering his parent's home and taking property]; People v. Davenport

(1990) 219 Cal.App.3d 885, 889-93 [defendant convicted of burglarizing

cabin owned and occupied by his estranged wife and her parents]; People

v. Sears (1965) 62 Cal.2d 737, 746, overruled on other grounds by People

v. Cahill (1993) 5 Cal.4th 478 [burglary conviction proper where husband

had moved out of family home three weeks before and had no right to

enter without permission]; compare Fortes v. Municipal Court (1980) 113

Cal.App.3d 704, 712-14 [husband had unconditional possessory interest in

jointly owned home, his access to the house was not limited and strictly

permissive, as was the case in Sears].)



Consent



While lack of consent is not an element of burglary, consent by the

owner or occupant of property may constitute a defense to burglary.

(People v. Felix (1994) 23 Cal.App.4th 1385, 1397-98; People v. Superior

Court (Granillo) (1988) 205 Cal.App.3d 1478, 1485 [when an undercover

officer invites a potential buyer of stolen property into his warehouse

of stolen goods, in order to catch would-be buyers, no burglary

occurred].) The consent must be express and clear; the owner/occupant

must both expressly permit the person to enter and know of the felonious

or larcenous intent of the invitee. (People v. Felix (1994) 23

Cal.App.4th 1385, 1397-98.) A joint property owner/occupant cannot



{219}



give consent to a third party to enter and commit a felony upon the

other owner/occupant. (People v. Clayton (1998) 65 Cal.App.4th 418, 421

[husband's consent did not preclude a burglary conviction based upon

defendant's entry of premises with the intent to murder wife].)



Entry by Instrument



When an entry is made by an instrument, a burglary occurs if the

instrument passes the boundary of the building and if the entry is the

type that the burglary statute intended to prohibit. (People v. Davis

(1998) 18 Cal.4th 712, 722 [placing forged check in chute of walk-up

window of check-cashing facility was not entry for purposes of burglary]

disapproving of People v. Ravenscroft (1988) 198 Cal.App.3d 639

[insertion of ATM card into machine was burglary].)



Temporal or physical proximity - Intent to Commit the Felony



According to some cases, a burglary occurs "if the intent at the time of

entry is to commit the offense in the immediate vicinity of the place

entered by defendant; if the entry is made as a means of facilitating

the commission of the theft or felony; and if the two places are so

closely connected that intent and consummation of the crime would

constitute a single and practically continuous transaction." (People v.

Wright (1962) 206 Cal.App.2d 184, 191 [defendant entered office with

intent to steal tires from attached open air shed].) This test was

followed in People v. Nance (1972) 25 Cal.App.3d 925, 931 [defendant

entered a gas station to turn on outside pumps in order to steal gas];

People v. Nunley (1985) 168 Cal.App.3d 225, 230-32 [defendant entered

lobby of apartment building, intending to burglarize one of the units];

and People v. Ortega (1992) 11 Cal.App.4th 691, 695-96 [defendant

entered a home to facilitate the crime of extortion].)



However, in People v. Kwok (1998) 63 Cal.App.4th 1236, 1246-48, the

court applied a less restrictive test, focusing on just the

facilitation factor. A burglary is committed if the defendant enters a

building in order to facilitate commission of theft or a felony. The

defendant need not intend to commit the target crime in the same

building or on the same occasion as the entry. (People v. Kwok, supra,

63 Cal.App.4th at pp.1246-48 [defendant entered building to copy a key

in order to facilitate later assault on victim].) The court commented

that "the `continuous transaction test' and the `immediate vicinity

test' are artifacts of the particular factual contexts of Wright,

Nance, and Nunley." (Id. at p. 1247.) With regards to the Ortega case,

the Kwok court noted that even though the Ortega court "purported to

rely on the `continuous transaction' factor of Wright, [the decision]

rested principally on the `facilitation' factor." (Id. at p. 1247-48.)



Multiple Convictions



Courts have adopted different tests for multi-entry burglary cases. In

In re William S. (1989) 208 Cal.App.3d 313, 316-18, the court analogized

burglary to sex crimes and adopted the following test formulated in

People v. Hammon (1987) 191 Cal.App.3d 1084,



{220}



1099 [multiple penetration case]: "`[W]hen there is a pause ...

sufficient to give defendant a reasonable opportunity to reflect upon

his conduct, and the [action by the defendant] is nevertheless renewed,

a new and separate crime is committed.'" (In re William S., supra, 208

Cal.App.3d at p. 317.) The court in William S. adopted this test

because it was concerned that under certain circumstances, allowing

separate convictions for every entry could produce "absurd results."

The court gave this example: where "a thief reaches into a window twice

attempting, unsuccessfully, to steal the same potted geranium, he could

potentially be convicted of two separate counts." (Ibid.) The William

S. test has been called into serious doubt by People v. Harrrison

(1989) 48 Cal.3d 321, 332-32, which disapproved of Hammon. Harrison

held that for sex crimes each penetration equals a new offense. (People

v. Harrison, supra, 48 Cal.3d at p. 329.)



The court in People v. Washington (1996) 50 Cal.App.4th 568, 574-79, a

burglary case, agreed with William S. to the extent that burglary is

analogous to crimes of sexual penetration. Following Harrison, the

court held that each separate entry into a building or structure with

the requisite intent is a burglary even if multiple entries are made

into the same building or as part of the same plan. (See also 2 Witkin

and Epstein, Cal. Criminal Law (2d. ed. 1999 Supp.) "Multiple Entries,"

§ 662A, p. 38.) The court further stated that any "concerns about

absurd results are better resolved under Penal Code section 654, which

limits the punishment for separate offenses committed during a single

transaction, than by [adopting a different] rule that, in effect,

creates the new crime of continuous burglary." (People v. Washington,

supra, 50 Cal.App.4th at p. 578.)



Room



Penal Code section 459 includes "room" as one of the areas that may be

entered for purposes of burglary. (Pen. Code, § 459.) An area within a

building or structure is considered a room if there is some designated

boundary, such as a partition or counter, separating it from the rest of

the building. It is not necessary for the walls or partition to touch

the ceiling of the building. (People v. Mackabee (1989) 214 Cal.App.3d

1250, 1257-58 [office area set off by counters was a room for purposes

of burglary].) Each unit within a structure may constitute a separate

"room" for which a defendant can be convicted on separate counts of

burglary. (People v. O'Keefe (1990) 222 Cal.APp.3d 517, 521 [individual

dormitory rooms]; People v. Church (1989) 215 Cal.App.3d 1151, 1159

[separate business offices in same building].)



Any one of the four theories of theft will satisfy the larcenous intent

required for burglary. (People v. Dingle (1985) 174 Cal.App.3d 21, 29-30

[entry into building to use person's telephone fraudulently]; People v.

Nguyen (1995) 40 Cal.App.4th 28, 30-31.)



{221}



1405. Burglary: Degrees



Burglary is divided into two degrees. If you conclude the defendant

committed a burglary, you must then decide the degree.



First degree burglary is the entry of an inhabited (house/vessel/

floating home/ trailer coach/part of a building).



A (house/vessel/floating home/trailer coach/part of a building) is

inhabited if someone lives there and (1) is present or (2) has left but

intends to return.



[A (house/vessel/floating home/trailer coach/part of a building) is

inhabited if someone had been living there but left only because a

natural or other disaster caused him or her to leave.]



[A "vessel" includes ships of all kinds, steamboats, steamships, canal

boats, barges, sailing vessels, and any structure intended to transport

people or merchandise over water.]



[A "floating home" is a floating structure that:



(1) is intended to be used as a stationary waterborne residence;



(2) does not have its own mode of power;



(3) is dependent on a continuous utility link originating on shore;



AND



(4) has a permanent continuous hookup to a sewage system on shore.]



[A "trailer coach" is a vehicle without its own mode of power, designed

to be drawn by a motor vehicle. It is made for human habitation or human

occupancy and for carrying property.]



[A "trailer coach" is also a park trailer that is intended for

human habitation for recreational or seasonal use and:



(1) has a floor area of no more than 400 square feet and does not exceed

12 feet in 31 width or 40 feet in length in the traveling mode;



(2) is built on a single chassis;



AND



(3) may only be transported on public highways with a permit.]



All other burglaries are second degree.



{222}



BENCH NOTES



Instructional Duty



The court has a sua sponte duty to give this instruction if first degree

burglary has been charged.



AUTHORITY



Determination of Degrees » Pen. Code, § 460.



Inhabitation Defined » Pen. Code, § 459.



Vessel Defined » Harb. & Nav. Code, § 21.



Floating Home Defined » Health & Saf. Code, § 18075.55(d).



Trailer Coach Defined » Veh. Code, § 635; Health & Saf. Code, §

18010(b).



RELATED ISSUES



Dwelling Houses for Purposes of First Degree Burglary



A "house" has been broadly defined as "any structure which has walls on

all sides and is covered by a roof." (People v. Wilson (1992) 11

Cal.App.4th 1483, 1487-89, citing People v. Buyle (1937) 22 Cal.App.2d

143, 148.) The following structures have each been held to be a dwelling

house or part of a dwelling house for purposes of first degree burglary:

a hospital room to which a patient was assigned overnight ( People v.

Fond (1999) 71 Cal.App.4th 127, 131-32); an occupied hotel room (People

v. Fleetwood (1985) 171 Cal.App.3d 982, 988); a tent (Wilson, supra, 11

Cal.App.4th at pp. 1487-89); a common-area laundry room located under

the same roof as and contiguous to occupied apartments (People v. Woods

(1998) 65 Cal.App.4th 345, 348-349); an attached garage (People v. Fox

(1997) 58 Cal.App.4th 1041; People v. Moreno (1984) 158 Cal.App.3d 109,

112); a storeroom connected to a house by a breezeway (People v. Coutu

(1985) 171 Cal.App.3d 192, 193); and an unoccupied but occasionally used

guest house (People v. Hines (1989) 210 Cal.App.3d 945, disapproved of

on other grounds in People v. Allen (1999) 89 Cal.Rptr.2d 279.)



Mistake Concerning Residential Nature of Building



A reasonable but mistaken belief that a dwelling house is not inhabited

is not a defense to first degree burglary. (People v. Parker (1985) 175

Cal.App.3d 818, 822-24.) The Penal Code does not make knowledge that a

"dwelling house" is "inhabited" an element of first degree burglary.

(See Pen. Code, §§ 459, 460; People v. Guthrie (1983) 144 Cal.App.3d

832, 843-48.)