INSTRUCTING THE JURY ON THE KNOWLEDGE ELEMENT OF WILLFULNESS AND GENERAL INTENT

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    The standard CALJIC instructions regarding the crucial principles of willfulness (CALJIC 1.20) and general criminal intent (CALJIC 3.30) omit any reference to an element of knowledge. However, there is authority for instructions such as the following which explain the knowledge element of willfulness and general criminal intent.

*Add to CJ 1.20:

    To willfully commit an act, a person must intentionally commit the act with actual knowledge of the facts [, including the reasonable, natural and probable consequences of the act,] which bring the act within the provisions of the statute under which [he] [she] is charged.

    If you have a reasonable doubt as to whether the defendant committed the act with actual knowledge of the above facts, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

    To willfully commit an act, a person must, with knowledge of what [he] [she] is doing, intentionally commit the act. This requires the prosecution to prove that the defendant committed the act with actual knowledge of the following: that the defendant __________ [insert requisite facts and/or consequences; e.g., that the arresting person was a police officer, that the substance was contraband and in the possession of the defendant, that the act was likely to result in a violent injury, etc.].]

    If you have a reasonable doubt as to whether the defendant committed the act with actual knowledge of the above facts, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

Points and Authorities

    PC 7(1) defines willfully as "a purpose or willingness to commit the act, or make the omission referred to." However, knowledge is also an element of "willful" action since a person must know what he or she is doing and intend to do the act. (See In re Trombley (48) 31 C2d 801, 807 [193 P2d 734]; see also People v. Simon (95) 9 C4th 493, 507-23 [37 CR2d 278]; In re Jerry R. (94) 29 CA4th 1432, 1438 [35 CR2d 155].) This includes knowledge of the nature and/or consequences of the act which make it criminal. (See e.g., People v. Colantuono (94) 7 C4th 206, 219 [26 CR2d 908] [willful commission of a violent act requires knowledge that an unlawful touching is substantially certain to result].)

    Moreover, the term willfully has been equated with general criminal intent. (See People v. Lee (94) 28 CA4th 659, 664 [33 CR2d 782]; People v. Stark (94) 26 CA4th 1179, 1182-83 [31 CR2d 887].) Therefore, because general criminal intent requires knowledge of the nature and consequences of the act which bring it within the terms of the statute (People v. Lopez (86) 188 CA3d 592, 598 [233 CR 207]) the term "willfully," when used to describe the general criminal intent mens rea of an offense, should include such an element. (See FORECITE F 3.30a; see also, Ninth Circuit Model Criminal Instructions (1995) No. 5.05, p. 79 [defendant must have knowingly intended to do "what the statute prohibits"]; U.S. v. Van Nguyen (9th Cir. 1995) 73 F3d 887,890 ["... a person is not criminally responsible unless 'an evil-meaning mind’ accompanies 'an evil-doing hand.’ [Citation.]"].)

    For example, PC 148(a) is a general criminal intent statute which proscribes the act of "willfully" resisting arrest, such as, running away from an arresting officer. However, merely showing that the defendant intentionally committed such an act does not establish general criminal intent. It must also be shown that the defendant had knowledge of the particular facts proscribed by the statute: e.g, that the arresting person was a police officer. "Merely running away from someone is not resisting arrest. Running from a plain clothes officer who does not identify that he or she is an officer could not, for instance, be a crime." (Lopez 188 CA3d at 598; see also, FORECITE F 9.00b [willful commission of violent act for assault requires knowledge of the violent nature of the act]; People v. Simon (95) 9 C4th 493, 519-22 [37 CR2d 278] ["willfully" selling a security by means of misrepresentation or omission of material fact (per Corp C 25401 and Corp C 25540) requires knowledge of the "falsity or misleading nature of a statement or of the materiality of an omission ...."]; People v. Beaugez(65) 232 CA2d 650, 657-58 [43 CR 28] [willful infliction of corporal punishment on a child (PC 273d) requires knowledge of the consequences of the act committed].)

    The comment to Instruction No. 5.05 of the Ninth Circuit Model Jury Instructions (1995 Revision) provides a lengthy analysis of the knowledge required to establish willfulness. The Ninth Circuit Committee concluded that when willfulness is an element of the charge, the willfulness instruction should track the relevant statutory definition of the offense and explain "in language tailored to the facts, that the offense must have been committed knowingly, intentionally and for the purpose of accomplishing what the statute prohibits." (Id. at p. 79.)

    Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution's burden of proof thereon violates the defendant's state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

F 3.30a General Intent: Knowledge Element

*Add to CJ 3.30:

    However, it must be proven beyond a reasonable doubt that the defendant committed the act with actual knowledge of the existence of the facts [, including the reasonable, natural and probable consequences of the act committed,] which bring the act within the provisions of the statute under which the defendant is charged.

Points and Authorities

    PC 20 requires a union of the act committed by the defendant and criminalintent. Hence, unless the crime is one of "strict liability," it is not enough that the defendant intentionally commit the act which the statute proscribes. "Mens rea and actus res must come together to make an act a crime under [PC 20]". (People v. Lopez (86) 188 CA3d 592, 598 [233 CR 207].)

    With general intent crimes, ignorance of the law is no excuse and there is no requirement of proof as to the defendant's knowledge that the act committed was illegal. (See CJ 3.30; CJ 4.36.)

    However, there is an element of knowledge in general intent crimes which is omitted from CJ 3.30; i.e., knowledge of the existence of the facts which bring the act within the criminal statute. (See PC 7(5).) Without knowledge of the existence of the facts of an act which bring the act within the statute, there is no criminal intent. (See Lopez, 188 CA3d at 598.) "The moral quality of an intent may be determined by knowledge, or lack of knowledge, of pertinent facts." (Perkins, Criminal Law (3d ed 1982) Ch 6, § 5, p. 697; see also, FORECITE F 1.20a.)

    For example, PC 148(a) is a general criminal intent statute which proscribes the act of willfully resisting arrest, such as, running away from an arresting officer. However, merely proving that the defendant intentionally committed such an act does not establish general criminal intent. It must also be shown that the defendant had knowledge of the particular facts proscribed by the statute: e.g., that the arresting person was a police officer. "Merely running away from someone is not resisting arrest. Running from a plain clothes officer who does not identify that he or she is an officer could not, for instance, be a crime." (Lopez, 188 CA3d at 598. Other examples abound: People v. Colantuono (94) 7 C4th 206, 214, 219 [26 CR2d 908] [general criminal intent for assault requires knowledge of the violent consequences of the act committed]; People v. Beaugez (65) 232 CA2d 650, 657-58 [43 CR 28] [general criminal intent in PC 273d requires knowledge of the consequences of the act committed]; People v. Reynolds (88) 205 CA3d 776, 779-80 [252 CR 637] [general intent for possession of drugs requires knowledge that drugs are present]; People v. Jurado (72) 25 CA3d 1027, 1030-31 [102 CR 498] [general intent offense of carrying a concealed weapon (PC 12025) requires knowledge of the weapon's presence].)

    Moreover, both the California and the U.S. Supreme Courts have consistently disapproved imposition of criminal liability based upon a "strict liability" interpretation of a statute to disallow criminal liability in situations where the defendant is unaware of all the facts which bring the act committed within the criminal statute. (See People v. Simon (95) 9 C4th 493, 519-22 [37 CR2d 278]; Staples v. U.S (94) 511 US 600 [128 LEd2d 608; 114 SCt 1793]; Lambert v. California (57) 355 US 225 [2 LEd2d 228; 78 SCt 240].)

    CJ 3.30 fails to convey this knowledge or awareness element to the jury. It merely informs the jury that the defendant must intentionally do that which the law declares to be a crime without requiring that the defendant be aware of the nature and consequences of the act which cause it to be criminal. Hence, CJ 3.30, "while consistent with the knowledge requirement, does not clearly and directly convey that requirement to the jury. Since knowledge is an element of the offense, [the defendant] [is] entitled to a specific instruction thereon. [Citations.]" (Reynolds, 205 CA3d at 780.)

    Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution's burden of proof thereon violates the defendant's state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

    Constructive Knowledge: If the statute allows conviction by criminal negligence, knowledge may be proven constructively by proof that the defendant "reasonably should have" known the required fact. (See PC 20; see also, CJ 3.36 for definition of criminal negligence.) Because "criminal negligence must be evaluated objectively" (Walker v. Superior Court(88) 47 C3d 112, 136 [253 CR 1]), in any case where wrongful intent is absent due to the lack of actual knowledge, the "heightened requirements" of criminal negligence require the jury to find that a "reasonable person in defendant's position would have [had the requisite knowledge]." (Williams v. Garcetti (93) 5 C4th 561, 574 [20 CR2d 341]; see also People v. Simon, 9 C4th at 507-23 [willfully requires actual knowledge or criminal negligence]; FORECITE F 5.12f [constructive knowledge ("should have known") requires consideration of reasonable person in defendant's position].)

    Negation Of Knowledge By Intoxication Or Mental Impairment: See FORECITE F 1.20b.

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