Defenses, generally (Right to Present)
Category > Defenses, generally (Right to Present)
Unconsciousness defense applies to a defendant suffering from mental illness.The defense of unconsciousness under Penal Code section 26 applies whether the defendant’s mental state of unconsciousness is caused by mental illness or physical or organic conditions. The trial court prejudicially erred by failing to instruct on unconsciousness given that the defendant was unaware of his actions. In this situation defendant was not limited to an insanity defense. If the jury were to find defendant’s condition was substance-induced, the defense may not apply to a general intent offense.id: 24191
The trial court erred in refusing to instruct on the defense of unconsciousness based on defendant’s taking of powerful drugs to deal with cancer and effects of chemotherapy.The trial court erred by failing to instruct on the defense of unconsciousness as a result of defendant taking drugs to combat her cancer and to overcome the effects of chemotherapy. The drugs she was taking and the evidence of her distant stare and failure to answer questions was enough to justify the instruction. However, the error was harmless where the jury rejected the claim of delusion and otherise rejected evidence of unconsciousness.id: 24086
The trial court prejudicially erred in refusing to instruct on the defense of unconsciousness where defendant was relying on the defense and there was evidence to support it.Defendant was convicted of driving under the influence of marijuana causing injury. His theory of the case was that he crossed the yellow lines due to his low blood pressure which caused him to pass out. The trial court erred in refusing to instruct on his defense of unconsciousness where there was evidence to support it and defendant was relying on it. The error was prejudicial as it removed the primary defense from the jury’s consideration.id: 22650
The trial court erred by instructing that defendant had the burden to prove a consent defense to burglary, by a preponderance of the evidence. The defendant’s burden of proof on the consent defense to burglary is to raise a reasonable doubt as to the facts underlying the defense. The trial court erred by instructing that defendant had the burden to prove consent to the burglary by a preponderance of the evidence. The error was prejudicial in light of the evidence that defendant was invited into the pawn shop by the owner who knew defendant intended to sell stolen property.id: 22173
The trial court erred by failing to instruct on Penal Code section 195 regarding excusable homicide committed during an accident in the course of a lawful act such as brandishing a weapon in self-defense.Defendant testified that he drew a weapon in self-defense, but fired accidentally. Under these circumstances the shooting is not considered self-defense. However, the trial court should have been instructed on Penal Code section 195 which provides that a homicide is excusable when committed by accident and misfortune in the course of doing a lawful act by lawful means, without any unlawful intent; and that brandishing a weapon in self-defense is a lawful act.id: 20715
At defendant's trial for receiving a stolen vehicle, the trial court erred in failing to instruct on claim-of-right and mistake-of-fact defenses where defendant acted as if he
believed the vehicle was abandoned.Defendant was convicted of receiving a stolen motor vehicle under Penal Code section 496d. In light of the evidence that defendant acted as though the motorcycle had been abandoned and he was entitled to possess it and made no attempt to conceal the fact that he was taking it, the trial court erred in failing to instruct sua sponte on the mistake-of-fact and claim-of-right defenses. The error was prejudicial since a finding that either defense applied would have negated the intent element of the offense.id: 19347
The court erred in precluding defendant from presenting the Compassionate Use Act defense where he testified at the 402 hearing that his doctor told him marijuana might help his headaches.A physician gives his or her "approval" of a patient's marijuana use within the meaning of the Compassionate Use Act if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient's illness. When a Compassionate Use Act defense is the subject of a pretrial Evidence Code section 402 hearing, the defendant need only produce evidence sufficient to raise a reasonable doubt on the element of the defense in question. Because defendant met the burden of showing he had the physician's approval to use marijuana, the trial court erred by precluding him from presenting the Compassionate Use Act defense to the jury.
id: 17580
Defendant charged with removing a child from his ex-wife's care need only raise a reasonable doubt about whether the facts showed he did so to prevent harm to the child
under section 278.7(a).Defendant was convicted of maliciously depriving a lawful
custodian of the right to custody of a child in violation of Penal Code section 278.5, subd.(a). He asserted a defense under section 278.7, subd.(a) which says the former provision does not apply where a person has a right to custody of the child and has a reasonable and good faith belief that the other person would harm the child. Defendant had the burden of raising a reasonable doubt as to whether section 278.7, subd.(a) applied. The trial court prejudicially erred by instructing defendant had to prove section 278.7(a) facts by a preponderance of the evidence.id: 19344
The trial court erred in failing to instruct the jury sua sponte on the defense of accident.Defendant was convicted of inflicting corporal injury on a cohabitant under Penal Code section 273.5. There was testimony that the victim's injuries were caused accidentally when she was struck by the door while entering the bathroom. Since there was substantial evidence of accident, and the defense relied on the theory for a defense, the court erred in failing to instruct the jury on the defense. The court compounded the error by failing to respond to a juror's question on the topic during deliberations.id: 16063
Court erred by instructing jury that defendant, seeking the medical marijuana use defense, need prove the underlying facts by a preponderance of the evidence.Health and Safety Code sections 11357 and 11358 make it a crime to possess and cultivate marijuana. Section 11362.5, subd.(d), enacted as part of the Compassionate Use Act in 1996, authorizes possession for personal medical purposes of a patient upon the written or oral approval of a physician. The defense may raise the issue of the limited immunity as a defense at trial or may move to dismiss the case pretrial on this basis. The burden of proof as to the facts underlying the section 11362.5, subd.(d) defense may, and should be, allocated to the defendant, but the defendant should be required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence. The trial court's instruction requiring defendant to prove the underlying facts by a preponderance of the evidence was reversible because it went to the heart of the case against defendant.id: 16890
The trial court did not err by refusing to instruct on the claim-of-right defense for the defendant charged with attempted grand theft and conspiracy to commit that offense.Defendant was convicted of the unauthorized practice of law, and a conspiracy to commit grand theft as he represented himself as a lawyer when filing a demand letter to a lumber company on behalf of codefendant Cornett, claiming Cornett had been injured on the premises. Contrary to defendant’s claim, he was not entitled to a claim-of-right instruction in this circumstance, and the instruction was inconsistent with his trial defense that he had done nothing wrong.id: 25051
The purported liberty defense was not relevant to premeditation, and was properly excluded by the trial court. Defendant sought to argue at his capital trial, while acting as his own lawyer, that his killing of the police officer was justified because he acted in defense of liberty in the same way colonists did against British attempts to disarm them. The trial court did not err by excluding the defense because the record did not support his claim that the defense was relevant to premeditation.id: 25039
Evidence that defendant occasionally blacked out due to drug and alcohol abuse did not support an unconsciousness instruction where there was no claim that he blacked out at the time of the incident.The trial court did not err by refusing to instruct on unconsciousness based on a statement that defendant occasionally blacked out due to his drug and alcohol abuse. This was not substantial evidence that he blacked out at any time during this incident. In fact, he had substantial recall of the incident 17 years later.id: 25272
The trial court did not err in refusing to instruct on unconsciousness where defendant's actions showed he did not lack awareness. Defendant argued the trial court erred by refusing to instruct on unconsciousness as a complete defense to the charges where he was bipolar, intoxicated professed unawareness as to his actions and forgot certain facts. However, defendant did not lack awareness during the offenses. His complicated actions showed he knew what he was doing before shooting the victims in vital areas of their bodies. For the same reason the evidence did not require an instruction on involuntary manslaughter based on
unconsciousness.id: 19834
The claim-of-right defense to robbery does not apply to a defendant who acts to recover property on behalf of another person. The trial court properly refused to instruct on the claim of right defense where the defendant acted to retrieve the electronic benefit card that belonged to his cousin. The defense only applies to a defendant seeking to retrieve his or her own property.id: 24026
The “prescription defense” to a drug possession conviction is not available to persons other than the person for whom the prescription was written.The prescription defense to possession or transportation of a controlled substance, does not extend to others who possess or transport the controlled substance “consistent with the prescription” or for the benefit of the prescription holder.id: 23451
The trial court does not have a sua sponte duty to instruct on the defense of unconsciousness.Defendant was convicted of resisting an officer and argued that because he testified he was “knocked out” after sustaining a head wound, the trial court should have instructed sua sponte on the defense of unconsciousness. However, the trial court was not required to instruct on the defense of unconsciousness absent a request from the defendant.id: 23344
There was no error in failing to instruct on voluntary or involuntary intoxication causing unconsciousness where there was no evidence that defendant was unconscious at the time of the killing.Defendant was convicted of second degree murder. He argued the trial court erred in failing to instruct sua sponte on voluntary intoxication or involuntary intoxication causing unconsciousness. However, there was no substantial evidence that defendant was voluntarily intoxicated to the point of unconsciousness or that someone had introduced a foreign substance into the drugs he was taking voluntarily.id: 22662
The trial court has no sua sponte duty to instruct on accident as a defense to robbery.Defendant was convicted of felony murder along with the special circumstance finding that the killing occurred during a robbery. While stealing the car, he ran over and killed the victim. He argued the trial court erred by failing to instruct sua sponte on the defense of accident. The intent element of robbery does not include an intent to apply force against the victim or to cause the victim to feel fear. It is robbery if the defendant committed a forcible act against the victim motivated by an intent to steal. The trial court had no sua sponte obligation to instruct on accident where, as here, defendant’s theory of accident is an attempt to negate the intent element of the charged crime. id: 22206
The transitory possession defense does not apply where the defendant threw the drugs under the car to avoid arrest.In People v. Mijares (1971) 6 Cal.3d 415, the court found that under certain limited circumstances, momentary possession of contraband is not legally culpable. However, a defendant who disposes of evidence, not out of scruple, but because of the threat of bodily harm or police apprehension cannot invoke the transitory possession defense of Mijares.id: 21403
The trial court did not have a sua sponte duty to instruct on accident as a defense to murder.Defendant argued the trial court erred by failing to instruct on accident as a complete defense to the murder. However, a claim of accident to a charge of murder is not an affirmative defense that can trigger a duty to instruct on the court’s own motion. id: 21731
The standard motive instructions did not preclude the jury from considering the defense of institutionalization. After being released from a long prison term, defendant ineptly attempted to rob the same bank he got caught robbing years ago. His defense at trial was “institutionalization,” that is, he could not cope with life outside of prison. He argued that he did not intend to keep the money. He claimed the standard motive instruction, CALCRIM 370, was improper, because it instructed the jurors on the use of motive to find guilt whereas his motive related to the defense theory. However, there was evidence of a guilty motive. Moreover, to the extent the instruction implied motive cannot support a defense, the implication was negated by the specific intent instruction and the argument of counsel.id: 20334
The claim of right defense does not apply to kidnapping for ransom or extortion.Defendant argued the trial court should have instructed on claim of right as a defense to kidnapping for extortion. However, the claim of right defense does not extend to extortion and
therefore cannot be raised as a defense to kidnapping for ransom or extortion.id: 19638
The court did not err in refusing to instruct that the jury need determine whether a reasonable battered person was justified in killing the victim. The trial court instructed on battered person's syndrome with a modified version of CALJIC 9.35.1. The court did not err in refusing defense counsel's further modifications suggesting the question the jury faced was whether a reasonable battered person was justified in killing the victim.id: 19528
Entrapment by estoppel defense was not available to a public official in a conflict of interest case who claimed reliance on the advice of a public attorney charged with counseling her. Defendant, a member of the city council, obtained an
appointment as city manager. She was later charged with violating Government Code section 1090 by holding a financial interest in a contract made by a public agency of which she was a
member. She asserted the defense of entrapment by estoppel claiming that she acted on the advice of the city attorney. However, that defense which applies to ordinary citizens should not be extended to the defense of public officials who seek to defend conflict of interest accusations by claiming reliance on the advice of public attorneys charged with counseling them and
advocating on their behalf.id: 19436
Defendant did not show trial counsel disregarded a clearly expressed desire to present a guilt phase defense.Trial counsel presented no defense at the guilt phase of defendant's capital trial. However, in habeas corpus proceedings defendant did not sustain his burden of showing that his trial attorney disregarded a clearly expressed desire to present a guilt phase defense under People v. Frierson (1985) 39 Cal.3d 803. Defendant was dissatisfied with counsel's approach and counsel was aware of this. However, defendant expressed dissatisfaction clearly and openly with the strength of the prosecution's case, the speed of the proceedings and his predicament - not with his attorney's failure to offer a guilt phase defense he later identified.id: 19371
Entrapment by estoppel defense has not been recognized in California.Defendants were convicted of misappropriating public funds under Penal Code section 1424. The trial court properly refused to instruct on the defense of entrapment by estoppel - i.e.,
reasonable reliance on advice of a government official, as that is not a recognized defense under state law and the evidence did not support the theory.id: 19236
The evidence did not support a defense of withdrawal, and therefore no instruction was required, where defendant waited outside while the others went in, and fled with them when they reemerged.Defendant argued the trial court erred by failing to instruct on defendant's burden of proof as to his only theory of defense, withdrawal. However, the trial court is required to instruct on a defense (and by extension, on the defendant's burden of proof as to that defense) only if substantial evidence supports the defense. Defendant was not entitled to the instruction because the evidence did not support withdrawal. He neither communicated to the codefendants that he was withdrawing from participation in the crime not did anything to prevent it: he merely hung back while they went into the apartment, waited until they reemerged, and fled along with them.id: 18631
Court did not err in holding a preliminary hearing to determine the admissibility of the evidence for defendant's proposed novel defenses.Defendant was charged with cultivating marijuana and possessing it for sale. He sought to raise two affirmative defenses - the common law defense of medical necessity and the limited immunity afforded under Proposition 215. He argued the trial court erred by holding an Evidence Code section 402 hearing to determine the admissibility of the evidence for the proposed defenses. However, the court did not abuse its discretion since there is a benefit, but no prejudice, in initially determining at a preliminary hearing whether to allow evidence of a novel defense, rather than awaiting testimony at trial that might prove to be both irrelevant and confusing.id: 17132
CALJIC 9.35.1, when considered with the other instructions and arguments did not limit the application of Battered Women's Syndrome evidence to perfect self-defense.Defendant was convicted of murder. She argued the instruction given to the jury on Battered Women's Syndrome - CALJIC 9.35.1 - allowed the jury to consider syndrome evidence on the question of self-defense but precluded the jury from considering the syndrome on the question of unreasonable self-defense. A portion of the instruction is confusing when read in isolation. However, when read in conjunction with the entire instruction, and with the other instructions, and when combined with the arguments of counsel, the potential for confusion was dissipated.id: 16778
Court did not err in failing instruct on claim-of-right defense where the evidence did not show the money was taken from the person who supposedly owed the debt.Defendant argued the court erred in failing to instruct on the claim-of-right defense to the robbery of Cantwell. The evidence showed defendant seized all of the money placed on the hood of the Jeep without any reference to whether such items came from Eggett who supposedly owed him a debt or others (including Cantwell) who did not. Defendant's self-serving statement that he did not know the money would turn out to be Cantwell's did not establish a bona fide belief the money had come from Eggett as opposed to Cantwell. Moreover, there was no acknowledgment that any debt even existed.id: 16060
Due to defendant's lengthy possession of the contraband, the trial court had no duty to instruct on the defense of transitory possession.Evidence showed defendant found methamphetamine in his house the night before it was searched. He testified he gave the drugs and smoking pipe to his wife and told her to get rid of them. However, a baggie containing methamphetamine was found by the investigating officers several hours later sitting in plain view upon the headboard of defendant's bed. Moreover, another bag of methamphetamine was found on a shelf in the closet of defendant's bedroom. Defendant's lengthy possession of the contraband denied him the right to a momentary possession instruction despite his stated intent to get rid of the drugs.id: 16061
Test for determining idiocy under section 26 is the same as the test for insanity.Defendant argued that because of mental retardation he was incapable of committing the charged robbery. He relied on Penal Code section 26 which provides "All persons are capable of committing crimes except ...idiots..." However, the test for determining idiocy pursuant to section 26 is the same as the test for insanity under section 25, subd.(b). Because defendant knew what he was doing was wrong, there was no basis for concluding he lacked the capacity to commit the crime.id: 16062
ABC's failure to comply with regulations regarding use of underage decoys is not a defense in criminal prosecutions.The failure of the law enforcement officers to comply with the regulatory guidelines for the use of underage decoys established by the Department of Alcoholic Beverage Control does not constitute a defense to Business and Professions Code section 25658 criminal prosecutions in light of the statement in California Code of Regulations Title 4, division 1, article 22, section 141 that failure to comply with the standards adopted by the Department "shall be a defense to any action brought pursuant to Business and Professions Code section 25658." The defense established by the departmental regulation is limited to administrative actions taken by and within the authority of the Department, and does not apply to criminal prosecutions.id: 15596
Claim of right defense is still valid but may no longer be used to defend forcible takings perpetrated to collect a debt.The claim-of-right defense provides that a defendant's good-faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for a conviction of theft or robbery. The Supreme Court found that the claim-of-right should continue to be recognized as a defense to robbery in California. However, the defense may no longer be used to defend forcible takings perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated.id: 15411
Prosecution of defendant after securing a conviction of another person for the same crime did not violate due process or judicial estoppel absent improper conduct by the prosecutor.Defendant was convicted of robbery, along with a finding that he personally used a firearm. The prosecution proceeded on the theory that defendant was the gunman although two other men were present. The prosecution had earlier tried a case against one of the other men on the theory that person was armed with the firearm. Defendant argued his conviction for the offense violated due process and judicial estoppel, since under any version of the evidence, only one man held a gun to the victim's head as she attempted to open the safe. However, there was probable cause to believe defendant had the gun. The evidence at trial supported the conclusion that the earlier jury was mistaken. The prosecutor's charging decision comported with due process. Moreover, the doctrine of judicial estoppel does not prevent the state from taking inconsistent factual positions in separate proceedings absent some indication that misconduct on the part of the prosecution was a cause of the inconsistency.id: 15266
Alibi defense did not impose a duty upon the trial court to instruct sua sponte pursuant to CALJIC 4.50.Defendant argued that his alibi defense imposed a duty on the trial court to instruct the jury sua sponte pursuant to CALJIC 4.50. However, for purposes of instructing with respect to an alibi defense, it is sufficient that the jury be instructed generally to consider all the evidence and to acquit the defendant if it entertained a reasonable doubt regarding his guilt.id: 13121
CALJIC instruction on unconsciousness was not necessary where the only evidence to support it was defendant's voluntary intoxication.Defendant argued the court erred in giving a special instruction on unconsciousness rather than the standard CALJIC 4.30. However, since there was no evidence supportive of a claim of unconsciousness due to anything other than voluntary intoxication, the court was not required to instruct on unconsciousness as a defense.id: 13122
Evidence that defendant acted to settle a score was insufficient to require an instruction on the claim-of-right defense.A trial court is not required to instruct on the claim-of-right defense unless there is evidence to support an inference that appellant acted with a subjective belief he or she had a lawful claim on the property. In the instant case, there was evidence implying defendant's actions may have been motivated by revenge, but none suggesting he in good faith believed the law allowed him to take the pipe to recover his own loss. The trial court was not required to instruct on the claim-of-right defense.id: 13125
Failure to instruct on the defense of accident and misfortune was harmless where the jury necessarily rejected the evidence that supported the defense.Defendant was charged with attempted murder. He claimed the shotgun discharged accidentally after being hit by the victim. Evidence in the form of defendant's testimony supported this version of events and the court therefore erred in failing to instruct sua sponte on the defense of accident and misfortune. However, the error was harmless where the jury was otherwise properly instructed and, given their findings, they necessarily rejected defendant's version of the facts.id: 13126
The trial court did not err by instructing that a mistaken belief that the cocaine was marijuana was not a defense.Defendant was convicted of several offenses involving the possession and transportation of a large quantity of cocaine. He argued the trial court erred by instructing that a mistaken belief that the cocaine was marijuana was not a defense. However, cocaine and marijuana are both controlled substances although different code sections prohibit their possession and sale. Even if defendant thought he was trafficking exclusively in marijuana he had the requisite knowledge of both the presence and the controlled substance character of the cocaine to be convicted under the code sections applicable to cocaine.id: 10769
Supreme Court upholds requiring defendant to give notice of defense evidence under rape shield law.Michigan's rape shield statute prohibits a defendant from producing, at trial, evidence of an alleged rape victim's past sexual conduct. However, the statute permits a defendant to introduce evidence of his <i>own</i> past sexual conduct with the victim, if he files a written motion and offer of proof within ten days after he is arraigned. The trial court may then hold an <i>in camera</i> hearing to determine whether the proposed evidence will be admitted. The Michigan Court of Appeals struck down the notice-and-hearing requirement, ruling that it was a <i>per se</i> violation of the Sixth Amendment. In a 7-2 opinion written by Justice O'Connor, the Supreme Court reversed, holding that a <i>per se</i> prohibition against enforcing notice requirements by precluding evidence could not be squared with <i>U.S. v. Nobles</i>, 422 U.S. 225 (1975), and <i>Taylor v. Illinois,</i> 484 U.S. 400 (1988), which upheld orders precluding a defendant from presenting evidence where he had not complied with a pretrial discovery request. The case was remanded to the Michigan Court of Appeals to determine whether or not preclusion was justified in this <i>particular</i> case. Justice Blackmun concurred in the judgment, and Justices Stevens and Marshall dissented.id: 9998
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850