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Table of Contents
Volume 1
PG VII(I) CONSTITUTIONAL GROUNDS FOR INSTRUCTION REQUESTS PG VII(I)(a) Table of Contents PG VII(I)(b) Grounds For All Cases—Capital And Non-Capital CG 1.1 Privilege Against Self Incrimination: Reliance On Silence
CG 1.2
Privilege Against Self Incrimination: Reliance On Inculpatory Evidence
Obtained In Violation CG 1.3 Defendant’s Right To Be Personally Present At Trial CG 1.4 Right To Testify CG 1.5 Public Trial CG 1.6 Double Jeopardy CG 1.7 Self Representation CG 1.8 Right Of Argument To The Jury CG 1.9 Right To Appointment Of Counsel CG 1.10 Right To Effective Counsel CG 1.11 Penalizing Defendant For Counsel’s Mistakes CG 1.12 Compulsory Process: Generally CG 1.12.1 Super Compulsory Process CG 1.13 Confrontation: Generally CG 1.13.1 Confrontation: Generally; Limitation As Constitutional Violation CG 1.13.2 Super Confrontation CG 1.13.3 Hearsay Violation As Confrontation Violation CG 1.13.4 Aranda/Bruton CG 1.14 Reliability CG 2 Burden Of Proof CG 2.1 Burden Of Proof: Failure To Adequately Define CG 2.2 Burden Of Proof: Elements And Essential Facts CG 2.3 Prosecution’s Burden Of Proof: Irrational Permissive Inference CG 2.4 Instructions Which Improperly Shift Burden Of Proof CG 2.5 Lightening, Lessening Or Diminishing The Prosecution’s Burden Of Proof CG 2.6 Lack Of Evidence May Result In Reasonable Doubt CG 2.7 Guilt By Association CG 2.9 Insufficient Evidence On Appeal CG 2.10 Multiple Defendants: Separate Consideration CG 3.1 Elements CG 3.1.1 Prosecution Must Prove Every Element Of Special Circumstance CG 3.2 Directed Verdict On Element CG 3.3 Directed Verdict On Essential Factual Issue CG 3.4 Erroneous, Conflicting And/Or Contradictory Instructions On Elements CG 3.5 Failure To Fully, Clearly and Accurately Instruct On An Element CG 3.6 Failure To Specifically Enumerate One Or More Elements CG 3.7 Failure To Tailor Elements To The Facts And Charge CG 3.8 Concurrence Of Act And Intent Or Mental State CG 3.9 Preliminary Factual Finding As To Element CG 3.10 Elements Of Crime Based On Failure To Perform A Legal Duty CG 3.11 Applicability Of Federal Constitutional Rights To Sentencing Decisions CG 3.12 Requirement Of Criminal Mens Rea CG 4 Defenses CG 4.1 Right To Instruct The Jurors On Defense Theories CG 4.2 Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge CG 4.3 Affirmative Defense: Right To Instruction
CG 4.4
Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution
Has Proven CG 4.5 Right To Present Evidence And Fair Opportunity To Defend CG 4.6 Right To Present Evidence: Experts CG 4.7 Right To Pinpoint Instruction: Non-Element CG 5 Evidence And Witnesses CG 5.1 Highly Prejudicial Or Inflammatory Evidence CG 5.3 Impairing Jury’s Assessment Of Witness Credibility CG 5.3.1 Aranda/Bruton CG 5.3.2 Super Confrontation CG 5.3.3 Hearsay Violation As Confrontation Violation CG 5.4 Argumentative, Improper Comment, Undue Emphasis Of Evidence CG 5.4.1 Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt CG 5.4.2 Argumentative Instructions Not Suggesting Opinion On Guilt CG 5.4.3 Undue Emphasis Of Specific Evidence CG 5.5 Defendant’s Statements/Adoptive Admissions CG 5.6 Extraneous Evidence CG 5.7 Preliminary Facts CG 5.8 Preliminary Factual Finding: Non-Element CG 5.9 Uncharged Acts: Propensity, Priors CG 5.10 Right To Jury Consideration Of Evidence CG 5.11 Eyewitness Identification CG 5.12 Factors To Consider Not Exclusive CG 5.13 Due Process Underpinnings Of Accomplice Cautionary Instruction CG 5.14 Corpus Delicti CG 5.15 Failure To Explain Or Deny CG 5.16 Consciousness Of Guilt CG 5.17 Motive CG 5.18 Reverse Consciousness Of Guilt CG 5.19 Unjoined Perpetrators CG 5.20 Dog Tracking CG 5.21 Uncharged Offenses: EC 1101(b) CG 5.22 Possession Of Stolen Property CG 6 Due Process CG 6.1 Due Process And Notice—Generally CG 6.2 Notice: Charging Document CG 6.3 Arbitrary Denial Of State Created Right CG 6.4 Cumulative Effect Of State Errors As Violation Of Federal Due Process CG 6.5 Instructions Must Be Balanced Between Defense and Prosecution CG 6.6 Balance Between Codefendants CG 6.6.1 Balance: Jury Panel CG 6.6.2 Balance: Among Instructions—No Undue Emphasis CG 6.7 Reliability: Non-Capital Charge CG 6.8 Prosecution Misconduct: Lost Or Destroyed Evidence CG 6.9 Prosecution Misconduct: Brady/Kyles CG 6.10 Prosecution Misconduct: Argument And Other Conduct During Trial CG 6.11 Fairness: Generally CG 6.12 Due Process: Appeal CG 6.13 Due Process: Interpreter CG 6.14 Due Process: Right To Fair Trial Trumps Judicial Economy CG 6.15 Super Due Process: Right To Fair Trial Trumps Domestic Rules Of Evidence CG 6.16 Racial Bias CG 6.17 Due Process Applicable To Deeply Rooted Common Law Right CG 7 Juror Duties And Conduct CG 7.1 Right To Jury Consideration Of The Evidence CG 7.2 Jury’s Duty To Fully And Fairly Apply The Law CG 7.2.1 Conflicting Or Contradictory Instructions CG 7.3 Consideration Of Matters Not Admitted Into Evidence CG 7.4 Juror Consideration Of Evidence For An Improper Purpose CG 7.5 Fair And Unbiased Jury CG 7.6 Premature Deliberations Or Formulation Of Opinion CG 7.7 Ex Parte Juror Contact CG 7.8 Right To Individual Juror Determination CG 7.9 Duty To Deliberate Fully And Fairly CG 7.10 Juror Nullification CG 7.11 Juror Questions Of Witnesses CG 7.12 Juror Questions Of Judge CG 7.13 Juror Requests For Readback CG 8 Lesser Offenses CG 8.1 Lesser Included Offense: Requested As Defense Theory CG 8.2 Lesser Included: Failure To Instruct Sua Sponte CG 8.3 Lesser Included—Capital Case CG 9 Trial Procedures CG 9.1 Public Trial CG 9.2 Courtroom Security CG 9.2.1 Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense CG 9.2.2 Defendant In Jail Clothes CG 9.3 Fair Opportunity To Defend CG 9.4.1 Codefendants: Generally CG 9.4.2 Misconduct By Co-Counsel CG 9.5 Voir Dire CG 9.6 Spectator Misconduct CG 10 Judge’s Duties CG 10.1 Fair And Unbiased Judge CG 10.2 Judge’s Duties: Deadlocked Jury CG 10.3 Comment, Argument Or Undue Emphasis CG 10.4 Competency Of Judge CG 11 Prosecution Misconduct CG 11.1 Prosecution Misconduct During Trial Or Argument As Violation Of Specific Rights CG 11.1.1 Reference To Non-Record Matters CG 11.1.2 Disparagement Of Defense Counsel CG 11.1.3 Disparagement Of Defendant CG 11.1.4 Reference To Inflammatory Evidence CG 11.1.5 Knowing Use Of Perjured Testimony CG 11.1.6 Unknowing Use Of Perjured Testimony CG 11.1.7 Guilt Assuming Hypotheticals CG 11.1.8 Comment On Veracity Of Prosecution Witness CG 11.1.9 Hampering Or Threatening Witnesses CG 11.1.10 Failure To Grant Immunity CG 11.1.11 Outrageous Government Conduct CG 11.1.12 Vouching CG 11.1.13 Misstatement Of Law CG 11.2 Prosecution Misconduct: Due Process CG 11.3 Prosecution Misconduct: Inconsistent Theories CG 12.1 Deliberation And Verdict CG 12.2 Duplicity/Unanimity CG 12.3 Multiplicity PG VII(I)(c) Additional Constitutional Grounds For Death Cases CG 13 Additional Constitutional Grounds For Death Cases CG 13.1 Death Qualification Based On Killing By An Accomplice During Another Felony Must Be Narrow CG 13.2 Death Eligibility Factor Must Not Be Overly Broad or Vague CG 13.3 Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden CG 13.4 Heightened Reliability Of Guilt Determination CG 13.5 Fair And Reliable Sentencing Determination CG 13.6 Individualized Sentencing CG 13.7 Jury Must Accept Personal Responsibility For The Sentencing Decision CG 13.8 Premature Deliberation As To Penalty CG 13.9 The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions CG 13.10 Jury Consideration Of Extrinsic Evidence Or Properly Admitted Evidence For An Improper Purpose CG 13.11 Jury Must Consider Mitigating Evidence CG 13.12 A Mandatory Death Sentence Is Unconstitutional: The Jury Must Fairly Exercise Discretion CG 13.13 Improper Aggravation CG 13.14 Fair And Reliable Sentencing Determination CG 13.15 No Coercion; No Duty To Decide CG 13.16 Standard Of Proof Required At Capital Sentencing Trial PG XI CALCRIM PRACTICE GUIDE PG XI(A) Propriety Of Non-CALCRIM Instructions PG XI(B) Propriety Of Modified Or Tailored CALCRIM Instructions PG XI(C) Propriety Of Mixing CALCRIM And CALJIC Instructions. PG XI(D) Lists And Tables Of CALCRIM Instructions PG XI(E) CALCRIM: Procedural Challenges PG XI(F) CALCRIM: Identification Of Players PG XII CALCRIM Article, Motion And Brief Bank. PG XII(A) CALCRIM Article Bank. PG XII(C) CALCRIM Motion Bank. PG XII(D) CALCRIM BRIEF BANK SERIES 100 PRETRIAL INSTRUCTIONS—CONTENTS A. General Instructions F 100 Trial Process (Before or During Voir Dire) F 101 Cautionary Admonitions: Jury Conduct (After Jury Is Selected) F 102 Juror Note Taking F 103 Reasonable Doubt F 104 Evidence F 105 Witnesses F 106 Jurors Asking Questions B. Admonitions F 120 Service Provider for Juror With Disability (CCP 224(b)) F 121 Duty to Abide by Translation Provided in Court F 123 Alleged Victim Identified as John or Jane Doe F 124 Do Not Talk About The Case Or Make Up Your Mind Series 200 POST-TRIAL INTRODUCTORY A. Introductory Instruction And Admonitions F 200 Duties Of Judge And Jury F 201 Do Not Investigate F 202 Note-Taking F 203 Multiple Defendants F 204 Defendant Physically Restrained F 205 Charge Removed From Jury Consideration F 206 One or More Defendants Removed From Case F 207 Proof Need Not Show Actual Date B. General Legal Concepts F 220 Reasonable Doubt F 221 Reasonable Doubt: Bifurcated Trial F 222 Evidence F 223 Direct and Circumstantial Evidence: Defined F 224 Circumstantial Evidence: Sufficiency Of Evidence F 225 Circumstantial Evidence: Intent Or Mental State F 226 Witnesses C. Causation F 240 Causation D. Union Of Act And Intent F 250 Union Of Act And Intent: General Intent F 251 Union Of Act And Intent: Specific Intent Or Mental State F 252 Union of Act And Intent—General And Specific Intent Together SERIES 300 EVIDENCE A. General Instructions F 300 All Available Evidence F 301 Single Witness’s Testimony F 302 Evaluating Conflicting Evidence F 303 Limited Purpose Evidence In General F 304 Multiple Defendants: Limited Admissibility Of Evidence F 306 Untimely Disclosure Of Evidence B. Witnesses: (i) Regarding Specific Testimony F 315 Eyewitness Identification F 316 Additional Instructions On Witness Credibility—Other Conduct F 317 Former Testimony Of Unavailable Witness F 318 Prior Statements As Evidence F 319 Prior Statements of Unavailable Witness F 320 Exercise Of Privilege By Witness (ii) Particular Types Of Witnesses F 330 Testimony Of Child 10 Years Of Age Or Younger F 332 Expert Witness Testimony F 333 Opinion Testimony Of Lay Witness F 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice F 335 Accomplice Testimony: No Dispute Whether Witness Is Accomplice F 336 In-Custody Informant F 337 Witness In Custody Or Physically Restrained C. Character Evidence F 350 Character Of Defendant F 351 Cross-Examination Of Character Witness D. Defendant’s Testimony And Statements F 355 Defendant’s Right Not To Testify F 356 Miranda-Defective Statements F 357 Adoptive Admissions F 358 Evidence Of Defendant’s Statements F 359 Corpus Delicti: Independent Evidence Of A Charged Crime F 360 Statements To An Expert F 361 Failure To Explain Or Deny Adverse Testimony F 362 Consciousness Of Guilt: False Statements E. Particular Types Of Evidence F 370 Motive F 371 Consciousness Of Guilt: Suppression And Fabrication Of Evidence F 371 Alternative A: Suppression Of Evidence F 371 Alternative B: Fabrication Of Evidence F 371 Alternative C: Fabrication Or Suppression Of Evidence By Third Party F 372 Defendant’s Flight F 373 Other Perpetrator F 374 Dog Tracking Evidence F 375 Evidence Of Uncharged Offense To Prove Identity, Intent, Common Plan, Etc. F 376 Possession Of Recently Stolen Property As Evidence Of A Crime Series 400 Aiding and Abetting, Inchoate, and Accessorial Crimes A. Aiding And Abetting And Related Doctrines F 400 Aiding And Abetting: General Principles F 401 Aiding And Abetting: Intended Crimes—Elements F 402 Natural And Probable Consequences Doctrine (Target And Non-Target Offenses Charged) F 403 Natural And Probable Consequences (Only Non-Target Offense Charged) F 404 Intoxication B. Conspiracy F 415 Conspiracy F 416 Evidence of Uncharged Conspiracy F 417 Liability For Co-Conspirators’ Acts F 418 Co-Conspirator’s Statements F 419 Acts Committed Or Statements Made Before Joining Conspiracy F 420 Withdrawal From Conspiracy C. Accessory And Solicitation D. Corporate Officers E. Attempt F 460 Attempt Other Than Attempted Murder SERIES 500 HOMICIDE A. General Principles F 500 Homicide: General Principles B. Justifications and Excuses F 505 Justifiable Homicide: Self-Defense or Defense of Another F 505 Notes F 506 Justifiable Homicide: Defending Against Harm to Person Within Home or on Property F 506 Notes F 507 Justifiable Homicide: By Public Officer F 508 Justifiable Homicide: Citizen Arrest (Non-Peace Officer) F 509 Justifiable Homicide: Non-Peace Officer Preserving the Peace F 510 Excusable Homicide: Accident F 511 Excusable Homicide: Accident In The Heat Of Passion F 512 Presumption That Killing Not Criminal C. Murder: First and Second Degree F 520 Murder With Malice Aforethought F 521 Murder: Degrees F 522 Provocation: Effect On Degree Of Murder F 522 Notes F 523 First Degree Murder: Hate Crime F 523 Note 1 Hate Crimes: Constitutionality (PC 422.7) F 524 Second Degree Murder: Peace Officer F 524 Notes F 525 Second Degree Murder: Discharge From Motor Vehicle D. Felony Murder F 540A Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act F 540A Notes F 540B Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act F 540C Felony Murder: First Degree—Other Acts Allegedly Caused Death F 541A Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act F 541B Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act F 548 Murder: Alternative Theories F 549 Felony Murder: One Continuous Transaction—Defined E. Alternate Theories of Liability F 560 Homicide: Provocative Act by Defendant F 560 Notes F 561 Homicide: Provocative Act By Accomplice F 561 Notes F 562 Transferred Intent F 562 Notes F 563 Conspiracy To Commit Murder F 563 Notes F. Manslaughter: (i) Voluntary F 570 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense F 570 Notes F 571 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense F 571 Notes F 572 Voluntary Manslaughter: Murder Not Charged F 572 Notes (ii) Involuntary F 580 Involuntary Manslaughter: Lesser Included Offense F 580 Notes F 581 Involuntary Manslaughter: Murder Not Charged F 581 Notes F 582 Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not Charged F 582 Notes SERIES 600 attempted murder G. Attempt F 600 Attempted Murder F 600 Notes F 601 Attempted Murder: Deliberation And Premeditation F 602 Attempted Murder: Peace Officer Or Firefighter F 603 Attempted Voluntary Manslaughter: Heat Of Passion—Lesser Included Offense F 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense H. Causation: Special Issues I. Impairment Defenses F 625 Voluntary Intoxication: Effects On Homicide Crimes F 625 Notes F 626 Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes F 626 Notes J. Charge to Jury
Volume 2
Series 700 homicide: Special Circumstances K. Homicide: Special Circumstances (i) General Instructions F 700 Special Circumstances: Introduction
F 702
Special Circumstances: Intent Requirement for Accomplice After June 5,
1990—Other Than Felony
F 703
Special Circumstances: Intent Requirement for Accomplice After June 5,
1990—Felony Murder, PC F 703 Notes F 704 INSTRUCTIONS F 704 Notes F 705 INSTRUCTIONS F 705 Notes F 706 INSTRUCTIONS F 707 INSTRUCTIONS
F 708
Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute
Whether Witness (ii) Special Circumstance F 720 Special Circumstances: Financial Gain, PC 190.2(a)(1) F 720 Notes F 721 Special Circumstances: Multiple Murder Convictions (Same Case), PC 190.2(a)(3) F 721 Notes F 722 Special Circumstances: By Means Of Destructive Device, PC 190.2(a)(4) & (6) F 722 Notes F 723 Special Circumstances: Murder to Prevent Arrest or Complete Escape, PC 190.2(a)(5)
F 724
Special Circumstances: Murder Of Peace Officer, Federal Officer, Or
Firefighter, PC 190.2(a)(7), (8) F 724 Notes F 725 Special Circumstances: Murder of Witness, PC 190.2(a)(10) F 725 Notes
F 726
Special Circumstances: Murder of Judge, Prosecutor, Government Official, or
Juror, PC 190.2(a)(11), F 726 Notes F 727 Special Circumstances: Lying in Wait—Before March 8, 2000, PC 190.2(a)(15) F 727 Notes F 728 Special Circumstances: Lying in Wait—After March 7, 2000, PC 190.2(a)(15) F 729 Special Circumstances: Murder Because of Race, Religion, or Nationality, PC 190.2(a)(16) F 730 Special Circumstances: Murder in Commission of Felony, PC 190.2(a)(17) F 730 Notes
F 731
Special Circumstances: Murder in Commission of Felony—Kidnapping With Intent
to Kill, PC 190.2(a) F 732 Special Circumstances: Murder in Commission of Felony—Arson With Intent to Kill, PC 190.2(a)(17) F 733 Special Circumstances: Murder With Torture, PC 190.2(a)(18) F 733 Notes F 734 Special Circumstances: Murder by Poison, PC 190.2(a)(19) F 735 Special Circumstances: Discharge From Vehicle, PC 190.2(a)(21) F 735 Notes F 736 Special Circumstances: Killing by Street Gang Member, PC 190.2(a)(22) F 736 Notes F 737 Special Circumstances: Murder of Transportation Worker, PC 190.25 (iii) Special Circumstances With Prior Murder
F 750
Special Circumstances: Prior Murder Conviction, PC 190.2(a)(2)—Trial on
Prior Murder, PC 190.1(a) F 750 Notes F 751 Second Degree Murder With Prior Prison for Murder, PC 190.05 L. Death Penalty F 760 HOMICIDE: Death Penalty F 760 Notes F 761 Death Penalty: Duty Of Jury F 761 Notes F 763 Death Penalty: Factors to Consider—Not Identified As Aggravating Or Mitigating F 764 Death Penalty: Evidence Of Other Violent Crimes F 764 Notes F 765 (Factor c) Death Penalty: Conviction for Other Felony Crimes F 766 Death Penalty: Weighing Process F 766 Notes SERIES 800 ASSAULTIVE AND BATTERY CRIMES A. MAYHEM F 800 Aggravated Mayhem (PC 205) F 800 Notes F 801 Mayhem (PC 203) F 801 Notes B. TORTURE F 810 Torture (PC 206) F 810 Notes C. ABUSE OF OR INJURY TO CHILD, ELDER OR DEPENDENT ADULT, SPOUSE (i) Child F 820 Assault Causing Death Of Child (PC 273ab)
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