Jury Instructions, generally
Category > Jury Instructions, generally
Updated 3/5/2024After getting a request for transcripts during deliberations, the court should have informed the jurors it could have testimony read back to them. During deliberations, the jurors requested transcripts of the testimony of certain witnesses. The trial court erred by failing to thereafter inform the jurors that they could have the testimony read back to them. The error was harmless where the testimony they requested only showed the weakness of the defense case.id: 27008
Updated 2/26/2024Chapman harmless error test applies where the jury is provided with one erroneous legal theory. Defendant was charged with assault with a deadly weapon - a box cutter, which is not inherently deadly but can be used in a way that makes it a deadly weapon. The trial court erred by permitting the jury to consider whether the box cutter was a deadly weapon under two theories (inherently deadly or used in a deadly manner) since the former theory was erroneous. The error should be reviewed on appeal under the Chapman test that applies to federal constitutional error.id: 26377
Updated 2/26/2024Aggravated kidnapping convictions were reversed where the instruction permitted a conviction on an invalid theory.The jury instruction for aggravated kidnapping to commit extortion or exact money or property from another person - a modified version of CALCRIM No. 1202 - contained a prejudicial legal error permitting the jury to find defendant guilty of the charged offenses on the legally invalid basis of kidnapping to extract money from the kidnap victim. The convictions for aggravated kidnapping were reversed, but could be retried since evidence supported the convictions.id: 26497
The improper response to a jury question permitted a murder conviction for conduct that amounted to accessary after the fact.The jury at defendant’s murder trial asked whether the commission of the crime included events that occurred after the shooting. The court’s response allowed the jury to convict defendant of second degree murder even if it found he formed the intent to aid and abet after the commission of the crime. The erroneous instruction required a reversal of the second degree murder conviction.id: 25874
The trial court erred by instructing on the suppression of evidence where there was no evidence that defendant authorized the letter his mother wrote to police.The trial court erred by instructing with CALCRIM No. 371, allowing jurors to find consciousness of guilt based on the suppression of evidence. The prosecution sought the instructions on the theory that defendant’s mother wrote an anonymous letter to the police naming “Danny” as the killer in an effort to draw attention from the defendant. However, there was no evidence showing that defendant was present when his mother wrote the letter or that he authorized it.id: 25687
The trial court erred by failing to instruct the jury at the murder retrial that defendant had previously been convicted of gross vehicular manslaughter while intoxicated. Defendant was convicted of second degree murder on retrial after a first jury had convicted him of gross vehicular manslaughter but could not reach a verdict on the murder charge. The trial court erred at the retrial by refusing to inform the jurors that defendant had been convicted in the first trial of gross vehicular manslaughter while intoxicated. The error required reversal of his second degree murder conviction. id: 24936
The trial court erred by instructing with an inconsistent affirmative defense over the defense objection. Defendant was charged with child custody deprivation. The trial court erred by instructing with CALCRIM No. 1252, regarding the affirmative defense of justification, where the instruction was inconsistent with the defense theory of the case that the prosecution had not met its burden. The error was harmless in light of the overwhelming evidence of guilt.id: 25377
The trial court’s instruction concerning the nonexistent uncharged offenses lowered the prosecution’s burden of proof and required automatic reversal. Defendant was convicted of vehicular manslaughter with gross negligence. The trial court improperly lowered the standard of proof by instructing that other crimes evidence can be proved by a preponderance of the evidence because no uncharged acts were admitted into evidence, the court was referring to defendant’s act of texting while driving, and this was the same evidence the prosecution used to prove gross negligence. This improper instruction constituted structural error and required reversal.id: 25130
The trial court erred by giving conflicting motive instructions in the child annoyance charges.Defendant was convicted of violating Penal Code section 647.6 - annoying or molesting children. In proving the charge, the prosecution had to show defendant was motivated by an unnatural sexual interest in children. The trial court erred by giving conflicting motive instructions - one that correctly stated the elements of section 647.6, and the other general instruction that the prosecution need not prove motive. The error was prejudicial where there was evidence supporting a contrary finding on the omitted element.id: 24477
The trial court erred by failing to instruct on the infraction of simple possession of marijuana as a lesser included offense of possession for sale.Defendant was charged with possession of marijuana for sale. The trial court erred by refusing to instruct on the lesser included offense of simple possession of less than an ounce, an infraction, based on the mistaken belief that an infraction cannot be tried to a jury. The issue was not waived under the invited error doctrine based on counsel’s failure to object to the court’s ruling where the record did not show a tactical reason for the decision.id: 24109
The trial court erred by instructing that the harbor patrol officer was a peace officer for purposes of battery on a peace officer.Defendant was convicted of battery on a peace officer. Evidence supported the conviction where the victim was a harbor patrol officer, was in full uniform, wearing a badge, carrying a gun, taser, baton and handcuffs, and was investigating a suspected theft. However, the trial court erred by instructing that the victim was a peace officer, as that was an element the prosecution had to prove. The court further erred by prohibiting defense counsel from arguing the jury had to decide whether the victim was a peace officer. The error was harmless given the evidence showing the victim was performing official duties and was therefore a peace officer under the relevant law. id: 23821
The trial court prejudicially erred by instructing in a way that suggested a murder defendant would go unpunished if not convicted where he had already been convicted of a lesser related gross vehicular manslaughter charge. Defendant was charged with both gross vehicular manslaughter and implied malice murder following a drunk driving accident that resulted in the death of his passenger. The first trial resulted in a conviction for the manslaughter charge only, and he was convicted of the murder at a second trial. The court erred at the second trial by instructing in a way that led the jury to believe that a not guilty verdict would allow the defendant to go unpunished, especially after the prosecutor’s argument that suggested as much. The error was prejudicial given that four jurors at the first trial voted not guilty on the murder charge and the evidence was not overwhelming .id: 23816
The trial court failed to instruct on defendant’s theory under the medical marijuana laws that members of the collective who grow marijuana can be paid by other members in exchange for marijuana.Defendant was convicted of cultivating marijuana. However, the trial court erred by failing to clearly instruct on the defense potentially available under Health and Safety Code section 11362.775, which legalizes the operations of coops and collectives for cultivating marijuana by groups of patients. Specifically, the instructions failed to clarify that a lawful cooperative or collective can consist of some patient members who grow marijuana and other patient members who compensate the growers with money in exchange for marijuana.id: 23942
The trial court erred by failing to define “identifiable person” for a defendant charged with secretly filming an identifiable person. Defendant was convicted of several counts of violating Penal Code section 647, subd.(j)(2), which criminalizes the act of secretly filming or photographing an identifiable person through clothing for sexual gratification. To establish the defendant has filed an “identifiable person,” the prosecutor must show that when all the evidence is considered, it is reasonably probable that someone could recognize or identify the victim - this may include the victim herself or himself. Evidence satisfied this standard on the charged counts. Nevertheless, reversal was required where the trial court erred by failing to instruct sua sponte on the definition of “identifiable person.” id: 24023
The trial court erred by failing to instruct on evidence of intimate partner abuse in deciding whether defendant formed the requisite specific intent. Defendant was charged with several offenses involving a robbery/carjacking/kidnapping incident. The trial court erred by failing to properly instruct the jury that it could consider evidence of intimate partner battering in determining whether she formed the requisite specific intent for the charged crimes. However, the error was harmless as defendant failed to show the probability of a better outcome if the jury had been properly instructed. id: 23673
The trial court erred by allowing a read back of testimony requested before the replacement of a juror.The jury requested a read back of certain testimony. One juror was then discharged and replaced with an alternate. The trial court erred by allowing the reconstituted jury to have the requested testimony reread. The court should have instructed the jury to begin deliberations anew and the original request was moot. However, the error did not constitute a prejudicial denial of the right to an unanimous verdict because it was unlikely a different verdict would have been rendered if the court had not answered the original jury’s request.id: 23714
The trial court erred by instructing on possession of stolen property as it related to the murder and arson charges.The trial court erred by instructing with CALJIC No. 215 because the instruction impermissibly allowed the jury to find him guilty of murder or arson based solely on the alleged fact that he was in conscious possession of recently stolen property, subject only to the condition that there be slight corroborating evidence of guilt. However, the error was harmless given the overwhelming evidence of defendant’s guilt. id: 23273
CALCRIM No. 359 is confusing in that it states that an accused may not be convicted by extrajudicial statements alone but that the defendant’s identity as the perpetrator may be established by his statements.CALCRIM No. 359 is confusing by telling the jury that an accused may not be convicted by extrajudicial statements alone (the corpus delicti rule) but also stating that the defendant’s identity as the perpetrator could be established by his extrajudicial statements alone. However, the error was harmless where the jury was otherwise instructed that it could only convict defendant if convinced beyond a reasonable doubt that he committed the charged crimes. id: 23140
The trial court erred by instructing that defendants’ gang activities were evidence that they committed the charged murder.The parties agreed that evidence of the defendants’ activities with the other Sureños was admissible to prove the gang enhancement but not as evidence that they were guilty of murdering Lopez. The trial court then erred by instructing the jurors to consider evidence of Sureño activity to establish defendants’ identities as the killers of Lopez and the other uncharged crimes. However, the error was harmless as it was most unlikely that defendants would have been acquitted if defense counsel had acted to correct the faulty instruction and succeeded in doing so. id: 23139
The trial court abused its discretion when instructing in response to a jury question where the jury asked the timing of force for robbery purposes and the court instructed on the separate issue regarding the escape rule.The deliberating jury asked whether defendant could be convicted of robbery if it found that he surrendered the goods before using force. The trial court responded with an answer suggesting the theft continued until defendant reached a place where he could not longer be confronted by security guards. But this was an answer to a different question and was an abuse of discretion under Penal Code section 1138. The error required reversal of the robbery conviction.id: 23060
The trial court committed harmless error by failing to give a pinpoint instruction directing the jury’s attention to the expert testimony regarding defendant’s Asperger’s Syndrome.The expert testimony of defendant’s mental disorder of Asperger’s Syndrome, along with other evidence, was sufficient on the issue of whether he formed the mental state required for the charged solicitation and conspiracy offenses. The trial court therefore erred by refusing to give CALCRIM No. 3428 - the mental disorder instruction. However, the error was reviewed for prejudice under the Watson standard and was harmless given the strength of the evidence. id: 22695
Double jeopardy prevented retrial of a criminal threats count where the parties to the first appeal agreed the evidence was insufficient to support that count, it was reversed for other reasons in the appeal, and the prosecutor said he would present additional evidence of the charge on retrial.Defendant’s multiple convictions from the first trial were reversed because of a missing transcript on a Marsden hearing. The Attorney General conceded in that appeal that there was insufficient evidence to support one of the criminal threats convictions, but the court never ruled on the issue. On retrial, the prosecutor recharged the count and said he was presenting additional evidence on the count. The trial court erred by denying the defense motion to dismiss that count on double jeopardy grounds.id: 22630
Invited error doctrine does not apply where counsel’s tactical choice is a response to the trial court’s ruling.Defendant argued the trial court erred in failing to instruct on voluntary manslaughter as a lesser included offense of murder. The prosecutor argued the invited error doctrine applied because defense counsel expressly withdrew the instruction and said he had a tactical reason for doing so. However, counsel’s choice was the product of an earlier ruling by the court and the procedural bar should not be imposed where counsel acts defensively in response to the court’s ruling. In any event, substantial evidence did not support the instruction.id: 22770
The trial court erred in giving the consciousness of guilt instruction with an unmodified version of the voluntary intoxication instruction at defendant’s trial for orally copulating an unconscious person.Defendant was convicted of orally copulating an unconscious person. The trial court erred by giving both the consciousness of guilt instruction (CALCRIM 362) and the unmodified voluntary intoxication instruction (CALCRIM 3426). The latter allowed the jury to consider defendant’s intoxication only in deciding whether he knew the victim was unconscious during the oral copulation. The limitation erroneously prohibited the jury from considering evidence of defendant’s voluntary intoxication in determining whether he made false or misleading statements relating to the oral copulation knowing the statements were false or intending to mislead.id: 22513
The trial court erred in giving an instruction on attempted mayhem that focused on the means defendant intended to inflict the wound rather than its severity, and that was argumentative and favored the prosecution. Defendant was convicted of attempted mayhem. The trial court erred by instructing the jury on the offense of mayhem, by specifically stating that a “gunshot wound” could be a “serious bodily injury.” By omitting the examples provided in the instruction, and inserting the phrase “a gunshot wound” as an example of what may constitute a serious bodily injury for mayhem purposes, the court directed the jury to focus on the means by which defendant intended to inflict the wound, rather than the severity of the wound. Moreover, by listing the gunshot wound as an example, the court provided a grossly misleading and argumentative instruction that favored the prosecution.id: 22459
The trial court erred by instructing the jury that it could consider defendant’s discovery violation.The trial court erred by instructing the jurors that defendant failed to timely disclose evidence offered by a defense expert witness and they could consider that fact. However, the error was harmless in light of the overwhelming evidence of guilt.id: 22046
The trial court prejudicially erred by instructing that defendant could violate section 11353 by providing methamphetamine to minors. Defendant was convicted of two counts of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353. However, the trial court erred by instructing that the provision could be violated by providing either cocaine base or methamphetamine to a minor because methamphetamine was not included in the list of offenses specified in section 11353. It did not matter that another provision specifically prohibited providing methamphetamine to children. The instructional error required reversal.id: 22220
Instruction that the failure to prove the gun was real did not establish reasonable doubt impermissibly lightened the prosecutor’s burden. The issue at trial was whether the defendant used a real gun when committing the robberies. The court gave a pinpoint instruction saying the victim’s inability to conclusively establish the gun was real did not create a reasonable doubt as a matter of law that the gun was not a firearm. The instruction did not direct a verdict but it did impermissibly lighten the prosecution’s burden. However, the error was harmless in light of the lack of any evidence suggesting defendant used a toy gun.id: 22532
The trial court erroneously instructed on larceny rather than theft by false pretenses which required reversal of the theft conviction. Defendant was convicted of grand theft where he was found to have staged an accident at a ski resort to obtain medical treatment for a previous injury. The prosecution should have proceeded on a theory of theft by false pretenses because defendant gained the victim's property (the money to pay for medical expenses) with its consent. The jury was not instructed under this theory but was instructed instead on larceny where property was taken without the victim’s consent. Reversal was required because the jury had no occasion to determine if the elements of the appropriate offense - theft by false pretenses - were satisfied.id: 21654
Lack of consent is an element of kidnapping for ransom, and the CALCRIM instruction was incomplete for not addressing that element. CALCRIM No. 1202 on kidnapping for ransom is flawed because it fails to inform the jurors of the prosecution’s burden to prove the victim did not consent to being confined (or another predicate act) and that the defendant did not actually and reasonably believe the victim consented. The trial court erred by failing to instruct sua sponte on that element of kidnap for ransom. Moreover, in response to jury’s request for a definition of “kidnapping” the court erred by providing a truncated version of CALCRIM No. 1215 (with defenses deleted) so that the jury was never informed that a victim’s consent or the defendant’s reasonable belief in that consent are defenses to simple kidnapping. id: 21773
1994 revised version of CALJIC 9.00 fails to accurately describe the intent necessary to support an assault conviction.CALJIC 9.00 erroneously permits a jury to convict for assault based on a criminal negligence standard rather than on a finding that the defendant had criminal intent. However, the error was harmless where the jury necessarily determined, in connection with the attempted murder charges, that defendant harbored the requisite mental state to support the assault convictions.id: 15334
The court prejudicially erred by giving conflicting instructions at defendant's trial for assault by a life prisoner.Defendant was convicted of assault by a life prisoner in violation of Penal Code section 4500. However, the jury was given conflicting instructions. CALJIC Nos. 9.00 and 3.30 required the jury to find general intent. CALJIC Nos. 7.35 and 3.31.5 required the jury to find the specific intent of malice aforethought. Additionally, the jury was instructed as to both malice aforethought and simple malice. The error was prejudicial where it was impossible to know whether the conflicting instructions contributed to the verdict.id: 18318
Trial court erred in applying CALJIC 2.15 to nontheft offenses.The trial court instructed pursuant to CALJIC 2.15 regarding the effect of possession of recently stolen property. The trial court's application of CALJIC 2.15 to nontheft offenses like rape or murder was erroneous. However, the error was harmless where it was unlikely the jurors would have reached a different result if the court had limited the permissive inference described in the instruction to theft offenses.id: 17290
CALJIC 2.28 which informed the jury of the defense discovery violation is problematic as it invites speculation and offers no direction, but it was harmless where the credibility challenge would otherwise have been made.Because of defendant's late disclosure of two alibi witnesses, the court instructed the jury with CALJIC No. 2.28 regarding the late disclosure of discovery by the defense, and the fact that the discovery violation could be considered by the jury. The instruction is being increasingly recognized as problematic as it encourages speculation, offers insufficient direction, and injects matters of compliance with pretrial procedures into the jury's evaluation of the evidence. Use of the instruction in the present case was harmless because it was merely a vehicle for credibility challenges that would have been made even absent the instruction.id: 18048
The trial court committed reversible error in failing to instruct the jury it had to find defendant committed a legal infraction other than driving under the influence to convict him of violating sections 23153, subdivisions (a) and (b).Defendant was charged with vehicular manslaughter without gross negligence (Penal Code section 192, subdivision (c)(3) and felony drunk driving under Vehicle Code section 23153, subdivisions (a) and (b). The prosecution's case was based on the defendant's violation of the basic speed law, the maximum speed law, and the laned roadway law - not on a negligence theory. The trial court committed reversible error in failing to explicitly instruct the jury that it had to find he committed a legal infraction other than drunk driving to convict him of violating section 23153, subdivision (a) and 23153, subdivision (b). Where the prosecution is relying on specific code violations for both manslaughter and felony drunk driving, the trial court must make it clear to the jurors that they are required to find the code section violations for both offenses.id: 10623
The trial court prejudicially erred by instructing the jury on late defense discovery to the prosecution.At the prosecution's request, the trial court instructed with CALJIC No. 2.28 on late defense discovery to the prosecution. However, the record failed to show defendant was personally responsible for any delay. The instruction also told the jurors to evaluate the weight and significance of the discovery violation without any guidance on how to do so. The error required reversal of the forgery conviction where it was reasonably probable the defendant may have achieved a more favorable result absent the instruction.id: 18033
Failure to instruct on elements of robbery in accessory case violated due process but was harmless beyond a reasonable doubt where there was no dispute as to whether a robbery occurred.Defendant was convicted of being an accessory to robbery. The jury was instructed that the prosecution was required to prove that a robbery occurred. However, the court, with the agreement of both trial counsel, did not instruct the jury with the elements of robbery, thus leaving the jury with no means of determining whether the prosecution proved all of the statutory elements of robbery. This failure violated defendant's right to have a jury find beyond a reasonable doubt every element of the crime as required by the due process clause. The error was harmless under the Chapman standard where no one disputed that the robbery occurred, and the only issue was defendant's knowledge of the perpetrator's actions.id: 17250
Defense counsel did not invite error by agreeing to the modified special circumstance instruction which replaced the “and” between the paragraphs with the disjunctive “or.” When giving the robbery – murder special circumstance instruction the trial court replaced the “and” linking the two paragraphs with the disjunctive “or.” This was done at the prosecutor’s request with defense counsel’s agreement. The invited error doctrine did not apply because the record shows no tactical reason why counsel would agree to the modified instruction. However, the error was harmless where the second paragraph did not describe a separate element, but instead clarified the scope of the first paragraph. id: 20553
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
Kidnapping conviction and special circumstance were reversed where the case was submitted on a legally inadequate theory suggesting movement of 37 feet would support a conviction.Defendant was convicted of murder along with a special circumstance that the killing occurred during a kidnapping. The instructions given along with the prosecutor's argument would have allowed a conviction based upon movement of the victim of a distance (37 feet) that was legally insufficient to support kidnapping at the time of the offense. While the prosecutor also argued the crime based on a separate movement that would have supported the asportation element of the kidnapping, it could not be determined whether the jury convicted defendant based on the legally inadequate theory. Therefore, the kidnapping conviction and kidnapping special circumstance were reversed.id: 19954
The trial court erred in failing to give amplifying instructions defining "speeding."Defendant was convicted of felony driving under the influence under Vehicle Code section 23153, subdivision (a). That provision prohibits a person from driving while under the influence of alcohol and committing an act forbidden by law. CALJIC 12.60 describes the elements of the offense, and when discussing the legal violation, refers to "speeding." Because the term "speeding," in the context of the basic speed law, is not clear and definite, the trial court had a sua sponte duty to give an amplifying instruction defining the term.id: 15523
Theft against an elder conviction was reversed where the instruction given on undue influence permitted persuasion short of coercion. Defendant was convicted of theft against an elder pursuant to Penal Code section 368, subd.(d) and grand theft under section 487, subd.(a). The trial court erred by instructing that the victim's apparent consent to the transactions was ineffective if obtained by the exercise of undue influence since the definition of undue influence given, was little more than over-persuasion. The convictions were reversed where the instructions provided alternate theories for guilt, some of which were legally correct, but it could not be determined which theory the jurors adopted.id: 19311
Court erred in instructing the jury not to consider lesser offenses before acquitting on the greater charge.The trial court erred in instructing the jury that they could not consider the lesser offenses before acquitting on the second degree murder count. However, given the possibly ambiguous nature of the court's statement, the absence of any indication that the statement thwarted the continuation of an appropriately full pattern of deliberations, and the substantial evidence of second degree murder which defendant did not contest, the court's use of the word consider was harmless.id: 13200
Court erred in instructing the jury not to consider why other persons are not being prosecuted where such other person is a witness in the case.Given the extent of the involvement of others, the court gave a full range of aiding and abetting and accomplice instructions. The court then gave CALJIC 2.11.5 instructing the jurors not to consider why others have not been prosecuted in this case. This instruction should not be given if the other person is a witness for the prosecution or defense. The error was harmless where the jurors were otherwise properly instructed and were told not to single out any instruction and to consider the full range of factors affecting credibility.id: 13201
Court erred in failing to instruct on concurrence of act and intent for burglary and robbery.The trial court erred in failing to instruct the jury on the necessity for the concurrence of act and intent for burglary and robbery <197> which underlied first degree felony murder and the felony-murder special circumstances. The error was harmless where the message was all but express in the instructions defining burglary and robbery as well as in the instructions dealing with the requisite specific intent to commit burglary and robbery as the predicate felony in first degree felony murder.id: 13196
Court erred in instructing the jury that foreseeability was not to be considered where the inmate defendant stabbed another inmate then stabbed the prison guard.Defendant was convicted of the murder of a fellow prison inmate and of a prison guard who was stabbed by the first victim after being stabbed by defendant. The prosecution persuaded the court that if defendant caused the inmate to lose his faculties and stab the guard impulsively, that blow was a dependent intervening act for which foreseeability was not required. However, an instruction that told the jury to disregard foreseeability would inevitably lead it to ignore the nature of the inmate's response to defendant's attack, and hence would substantially distract the jury from considering the causation element of the offense<197>which was very much at issue. The instruction was improper and required reversal of the conviction of the murder of the security guard.id: 13202
Court erred in instructing the jurors not to consider why others have not been prosecuted where the motive of the coconspirators to lie was relevant.The jury was instructed pursuant to CALJIC 2.11.5 not to discuss or consider why another person has not been prosecuted for this crime. This instruction was erroneous because it could have prevented the jury from considering the incentive the various coconspirators had to lie. The error was harmless where the jury was otherwise properly instructed and defense counsel expressly invited the jury to consider the possibility of bias or motive when evaluating the credibility of a witness.id: 13199
Court erred in instructing the jurors they need only agree the crime was committed on or about a certain date when an alibi defense was presented and argued.The trial court erred in instructing with CALJIC 4.71 telling jurors they need not find the crime occurred on the exact date charged, and CALJIC 4.50 regarding proof of defendant's presence at the crime when alibi defense is presented. The prosecution presented facts and argument specifying the exact dates and times when the crimes occurred. The defendant provided alibis for those dates and times. The facts therefore did not justify the giving of 4.71.id: 13198
Court erred in failing to fully instruct on maintaining a place for unlawfully selling a controlled substance as certain terms carried a specific legal meaning.The trial court erred in its instructions on opening or maintaining a place for unlawfully selling or using a controlled substance (Health and Safety Code section 11366). The court simply read the statute to the jury without orally defining opening or maintaining, and then declined the jury's request for elements of proof as to that charge. Since the jury was not fully instructed on the meaning of the elements of the case, the conviction was reversed.id: 13195
Trial court must provide a written copy of the jury instructions upon request.Penal Code section 1093, subdivision (f) mandates that the trial court provide a written copy of jury instructions to the jury upon request. The judge in the instant case told the jury that while he would not provide a written copy of the instructions, he would recite or reread any instructions the jurors requested. This procedure was erroneous. However, the error was not prejudicial where the jurors never requested that the instructions be reread and indicated no confusion or misunderstanding of the instructions.id: 13222
Failure of the court to instruct on four of the five elements of robbery required reversal of all robbery related convictions.Defendant was convicted of multiple counts charging him with robbery, attempted robbery and conspiracy to commit robbery (along with murder of the police officer). Reversal of the robbery related counts was required because the trial court failed to instruct on the elements of robbery, other than the intent to permanently deprive the owner of property. The failure to instruct on four of the five elements of robbery was reversible per se regardless of the merits of the People's argument that defendant did not dispute the existence of the predicate facts and that the evidence overwhelmingly established the elements of all the robbery related counts.id: 9868
Trial court erred in providing recorded rather than written copies of the jury instructions.Defendant argued the trial court prejudicially erred by failing to provide the jury with a written copy of the jury instructions pursuant to Penal Code section 1093, subd. (f). The court erred in at least failing to advise the jury that a written copy of the jury instructions would be made available upon request. However, the error was not prejudicial where the jury gave no indication it was confused by the instructions, the jury never indicated it could not answer whatever questions it had by playing the tape recorded version of the instructions, and the deliberations did not take an unduly lengthy period of time.id: 13219
Court prejudicially erred in failing to instruct on the elements of the deadly weapon use enhancement.Defendants were convicted of second degree robbery and deadly weapon use allegations (Penal Code section 12022, subd. (b)) were found to be true. The trial court erred in failing to instruct the jury, sua sponte, on the elements of the dangerous or deadly weapon use enhancements and that the provision requires that defendant personally use the deadly weapon. However, the jury was instructed on aiding and abetting, which would allow a positive finding on the enhancement based on a codefendant's use of the weapon. Consequently, it could not be said beyond a reasonable doubt that the jury's finding on the enhancement were not affected by the court's erroneous instruction. Imposition of the enhancements were reversed.id: 9855
Court committed reversible error in failing to sua sponte define addict where doctor was charged with illegally prescribing drugs for addicts.Defendant doctor was convicted of 13 counts of illegally prescribing a controlled substance (Health and Safety Code section 11153). Several experts testified about the meaning of addiction. Defendant argued he was not prescribing to addicts. The People argued otherwise. Both sides emphasized addiction in their arguments. The trial court's failure to sua sponte instruct the jury on the definition of the word addict was reversible error.id: 10701
Court prejudicially erred in failing to define the term "legal justification" when instructing the jurors regarding the crime of injuring a police dog.Defendant was convicted of inflicting injury to a police dog in violation of Penal Code section 600, subdivision (a). The court instructed that in order to convict the jury must find defendant acted without legal justification. However, the court failed to inform the jury as to the elements of the crime because it failed to define the term legal justification, which has a technical meaning peculiar to the law. The error required reversal where there was evidence to support the theory of justification and it could not be concluded beyond a reasonable doubt that the verdict was not affected by the erroneous instruction.id: 9856
Court's error in omitting a nonmaterial element of the offense in its instructions did not require reversal.Defendant was convicted of evading a pursuing police officer (Vehicle Code section 2800.2). He argued the trial court erred in failing to instruct on an element of the offense <197> the requirement that the pursuing police officer be uniformed. However, defendant effectively conceded guilt of this offense so that he might obtain an acquittal on other charged offenses. Moreover, the omitted element was indisputably established by the evidence. Since the omitted element was not material the error was harmless.id: 9865
Failure to appear instruction was unconstitutional as it instructed the jury to presume defendant intended to evade the process of the court.Defendant was charged with failing to appear on a felony under Penal Code section 1320, subdivision (b). The court instructed that it should be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. The instruction is constitutionally infirm because it creates a conclusive or mandatory presumption relieving the prosecution of proving an element of the offense beyond a reasonable doubt. However, the error was harmless given the overwhelming circumstantial evidence that defendant intended to evade the process of the court.id: 10782
Court committed reversible error in failing to instruct the jury to take into account defendant's blindness and hearing impairment in deciding whether he reasonably should have known the victim was a peace officer.Defendant was convicted of brandishing a weapon in the presence of a peace officer pursuant to Penal Code section 417, subdivision (c). Defendant was blind and hearing impaired. The conviction was reversed because the trial court erroneously refused to instruct on the defense theory of the case: i.e., that defendant was held to the standard of a reasonable person with a similar physical disability in deciding whether he reasonably should have known that he was in the presence of a peace officer.id: 10780
Court erred in instructing that for purposes of battering a peace officer a police officer is a peace officer.Defendant was convicted of battery on a peace officer with a deadly weapon (Penal Code sections 242 and 243, subdivision (c)). The court erred in failing to instruct that a police officer is a peace officer only if he or she is employed as a police officer and appointed by the Chief of Police or an executive of the c ity's agency. Instead, the court instructed that a San Jose police officer <U>is</U> a peace officer. However, the instruction given did not completely withdraw the issue from the jury as they were required to find beyond a reasonable doubt the victim was a peace officer. Moreover, the error was harmless given the officer's testimony that he was engaged in police activity on the night in question.id: 13197
Court erred in failing to delete the word "immediately" from the standard flight instruction where the escape occurred after defendant was charged with the burglary.Defendant was convicted of burglary and escape. Because there was no evidence of flight at the time of the burglary (the escape was from custody after being charged), the court erred in failing to delete from the standard flight instruction the phrase immediately after the commission of a crime. However, inclusion of the irrelevant language was harmless where the error did not lower the prosecution's burden of proof on the escape charge or interfere with the defendant's ability to establish his necessity defense.id: 13194
The trial court erred in failing to orally instruct on a "witness willfully false" which the court had indicated it would give.The court inadvertently neglected to read to the jury CALJIC 2.21.1 regarding a "witness willfully false," an instruction the court had indicated it would give. The instruction was included in the written packet sent to the jury. The error was compounded by the court's refusal to recall the jury and read the instruction aloud. However, the error was not prejudicial where defense counsel argued the concept to the jury and the court delivered other instructions covering essentially the same ground.id: 13217
Instruction removing an element of the offense was constitutional error but subject to harmless error analysis.Defendant was charged with evading a peace officer resulting in serious bodily injury in violation of Vehicle Code section 2800.3. When instructing the jury on the elements of the offense, the trial court did not advise the jury that it should determine whether the persons in the pursuing vehicle were peace officers, but instead informed the jury that the people in the car were police officers thus removing this element from the jurys consideration. Although the trial court committed constitutional error, its action did not amount to structural error within the meaning of the governing federal constitutional decisions and thus is not reversible per se, but rather like most constitutional errors, is subject to a harmless error analysis under the state and federal constitutions.id: 16084
Trial court committed harmless error in failing to instruct that the arson enhancement requires that the device be "designed" to accelerate a fire.The trial court misinstructed the jury on the factual elements of the Penal Code section 451.1, subd. (a)(5) enhancement alleged in conjunction with the arson charge. The provision calls for additional punishment where "the arson was caused by use of a device designed to accelerate the fire or delay ignition." The instruction delivered by the court omitted the word "designed." The error was harmless under the <i>Chapman</i> standard where a rational jury could only have concluded that the gasoline filled bottle was a device designed to accelerate the fire, and that the arson was caused by defendant's use of the device.id: 15045
Early propensity evidence instructions violated due process by increasing the likelihood the jury would misuse the evidence of prior offenses opening the door to a conviction based on propensity.Defendant was convicted of an act of domestic violence. The trial court admitted prior domestic evidence under Evidence Code section 1109. The prosecution's burden of proving each element of the charged offense was unconstitutionally reduced by two instructions given to the jury - the pre-1999 version of CALJIC 2.50.02 and CALJIC 2.50.1, which together permitted the jury to find by a preponderance of the evidence that defendant had abused the victim in the past, and to infer from his past abuse that he had a disposition toward domestic violence and actually committed the charged offense. However, the error was harmless where its effect on the verdict was negligible.id: 15998
Trial court erred by refusing the jury's request to define the word "sustained."When instructing the jurors on the terrorist threat charge, the court informed them pursuant to CALJIC 9.94 that the threatening statement must cause "sustained" fear. The jurors asked for a definition of "sustained" which the court refused to provide. The refusal to provide the requested definition was erroneous but the error was harmless where the defense never argued that the victim's fear was fleeting or transitory.id: 15046
Court erred in instructing that the necessity defense did not apply to murder where defendant did not offer that defense.The court instructed, at the prosecutor's request, that necessity is not a defense to homicide. However, the necessity defense was not presented nor was evidence in support of the defense. Instructions should not be unnecessarily complicated by telling the jury that a defense unclaimed by the defendant and excluded by other instructions is inapplicable. However, the error was harmless since defendant did not assert the defense and it did not preclude the jury from considering the evidence of the murder victim's abuse of her daughter.id: 16907
The court erred in failing to advise the jurors during breaks not to form an opinion or discuss the case with others.The trial court erred in failing to admonish the jurors at each adjournment throughout the trial, pursuant to Penal Code section 1122, not to discuss the case with others or form an opinion. However, the error was not prejudicial since the admonition was given during the voir dire process, and there was no evidence that any juror violated the admonition.id: 17412
Court erred in instructing the jury it could draw an unfavorable inference from defendant's failure to explain why the victim would falsely accuse him of molest.The trial court instructed with CALJIC No. 2.62 that the jury could draw unfavorable inferences from defendant's failure to explain or deny evidence against him, based on the defendant's failure to explain why the victim would falsely accuse him of child molest. The instruction should not have been given since defendant was not asked about the alleged victim's motivations, there were no facts showing defendant knew such facts, and any attempt to comment in that regard would have been inadmissible. However, the instructional error was harmless in light of the strength of the evidence of defendant's guilt, defendant's lack of credibility, and the fact that the prosecutor did not emphasize the point during closing argument.id: 17496
The trial judge gave an improper and prejudicial dynamite instruction to the deadlocked jury suggesting the minority jurors should respect the majority opinion.While instructing the deadlocked jury, the judge emphasized the case must be decided at some point. He said a trial necessitated a substantial investment in time and resources. He told jurors holding a minority position to "respect the majority opinion" and to "question their own judgment if a majority of the jurors take a different view of the case." The instruction was improper and required a reversal of the conviction.id: 18032
The trial court prejudicially erred in refusing instructions on self-defense where defendant testified the shooting was accidental.Defendant was convicted of assault with a firearm. He testified the gun had fired accidentally. He did not testify he intentionally fired in self-defense. Nevertheless, he requested instructions on self-defense. The trial court erred in refusing the requested self-defense instructions. The jury disbelieved the defendants testimony that the gun was fired accidentally. Having no instruction regarding an intentional firing in self-defense, the jury was deprived of any further alternative under the instructions given other than to convict. The jury could have found defendant fired the gun intentionally hoping to end the attack on him. The courts refusal to instruct on self-defense required reversal of defendants conviction.id: 16078
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
While CALJIC 17.41.1 is not unconstitutional, trial courts should no longer instruct jurors to notify the court if others are refusing to deliberate.CALJIC No. 17.41.1 instructs jurors to advise the court if any of the other jurors refuse to deliberate or express an intention to disregard the law. The instruction does not violate a defendant's constitutional right to a trial by jury or to a unanimous verdict. However, the instruction should not be given in future trials because it has the potential to intrude unnecessarily in the deliberative process and affect it adversely both with respect to the freedom of jurors to express their differing views during deliberations, and the proper receptivity they should accord the views of their fellow jurors.id: 16889
Court erred in failing to give a revised pinpoint instruction directing the jury's attention to the problematic nature of eyewitness identification.Defendant presented the testimony of an expert on eyewitness identification to explain potential problems with the accuracy of such identifications. The trial court then denied a proposed special instruction relating to the testimony. Denial of the instruction was erroneous. To the extent that the instruction was argumentative the court could have revised it. However, given the strength of the evidence of guilt, the detail in defense counsel's argument, and the other instructions given regarding eyewitness identification - the court's error in failing to deliver a revised pinpoint instruction directing the jury's attention to the problematic nature of eyewitness identifications was harmless.id: 11425
Trial court must instruct on the need for corroboration of an unconfirmed extrajudicial identification.The trial court must instruct on the need for corroboration of an extrajudicial identification whenever evidence of a witness' extrajudicial identification of a defendant is admitted at trial and that witness fails to confirm the extrajudicial identification at trial. However, the instructional omission was harmless in the instant case as the record contained substantial corroborative evidence.id: 11406
The trial court violated defendant's right to due process by changing the basis of admissibility of evidence in response to a juror question during deliberations.During deliberations, the jurors asked for a clarification of CALJIC 2.90. In responding to the question, the court referred to the other charged crimes. The court's remarks had the effect of admitting the evidence of the other charged crimes as evidence of motive and identity. However, the court may not expressly or impliedly change the scope or basis of admissibility of evidence after the case is submitted to the jury because due process requires that a defendant be able to address the admissibility and purpose of the evidence before the case is ready for argument, instruction and deliberation. The instructional error required reversal of the robbery convictions.id: 17025
Court had a sua sponte duty to define "dangerous fireworks" in a prosecution for illegal possession of such fireworks.The trial court had a sua sponte duty to define the term "dangerous fireworks" when it instructed the jury on the elements of the crime of illegally possessing dangerous fireworks in violation of Penal Code section 12677. The term has a technical meaning peculiar to the law. However, the error in failing to so instruct was harmless under the Chapman standard where the closing argument of defense counsel impliedly conceded that the fireworks were dangerous.id: 15532
Updated 3/6/2024Invited error doctrine applied where counsel said the defense did not want lesser included offense instructions.While discussing jury instructions in the felony assault case, defense counsel emphasized it was not seeking a lesser included offense instruction on simple assault. Defendant, on appeal, argued the trial court erred by not instructing on the lesser included offense. However, defense counsel invited the error and the court refused to review the issue on appeal.id: 26664
Updated 3/5/2024The trial court erred in narrowly construing the jury’s request for transcripts of witnesses, and in denying defense counsel’s request to inform jurors of the right to readback of testimony.During deliberations, the trial court denied the jury’s request for transcripts of certain witnesses and defense counsel’s request to inform the jurors that they could have the testimony read back to them. The court erred in construing the jury’s request narrowly as a request for transcripts, not a request for a readback of testimony, and in failing to inform or remind jurors of their right to a readback of testimony.id: 26799
Updated 2/26/2024Intimate partner battering instruction did not suggest that if jurors believed the expert they should believe the complaining witness.Defendant was convicted of several crimes involving domestic violence against his ex-wife. The prosecution presented an expert on intimate partner battering who described how victims often cycle back and forth between periods of seeking help from police and of supporting their battering partners, including by making false statements to the police. The instruction given on the subject (CALCRIM No. 850) did not suggest that if the jurors believed the expert they should also believe the complaining witness.id: 26278
Updated 2/23/2024Reference to “minor or moderate” harm in the GBI instructions did not render them improperly ambiguous. The trial court instructed with CALCRIM Nos. 875 and 3160 when defining great bodily injury. Contrary to defendant’s claims, the instructions were not ambiguous by referring to injury that is greater than “minor or moderate” harm. Use of the disjunctive did not permit jurors to find GBI if they found the harm caused was less than moderate. The instruction clearly informed jurors the injury had to be greater than moderate harm. id: 26876
CALCRIM 361 was justified based on defendant’s failure to explain why he accepted punishment for the weapons charge in prison, and it did not matter that the issue was not raised during cross-examination.Defendant argued the trial court erred by instructing with CALCRIM No. 361- that jurors could draw an unfavorable inference from his failure to explain or deny incriminating evidence at trial. He argued there was no incriminating evidence that he failed to explain or deny. The instruction was not proper based on witnesses’ failure to give supportive statements at an earlier time. However, defendant’s failure to explain his acceptance of punishment for the weapons charge justified the instruction despite the fact that the issue was not raised during cross-examination.id: 26198
The trial court’s failure to define assault was harmless given the evidence in other offenses showing an assault was committed. The trial court erred by failing to define assault when instructing on assault with a semi-automatic firearm. However, the error was harmless where the jury otherwise found (after proper instructions) that defendant intentionally displayed a firearm in a menacing matter and fired it or struck each victim with it, and that he fired it at an occupied vehicle. These offenses included the elements of assault.id: 26211
A mistake in instructing the jury on a superfluous “element” of a crimes does not constitute instructional error. Where the trial court mistakenly instructed the jury that the prosecution needed to prove a fact as an element of the crime but did not properly define that fact, the failure did not constitute instructional error when the fact was not, in actuality, an element of the crime.id: 26088
The trial court did not err by failing to instruct the prosecution need prove motive beyond a reasonable doubt where motive was used as circumstantial evidence of an intent to kill.Defendants argued that when the prosecution in a murder case relies on motive as circumstantial evidence that the defendant acted with an intent to kill, the prosecution is required to prove that motive beyond a reasonable doubt as a fact essential to that conclusion. However, the motive or reason a person chooses to commit a crime is not an element of murder. While motive evidence may have persuaded the jury that the defendants were guilty, nothing rendered defendants’ motive necessary to prove their guilt. id: 25814
The trial court properly responded to a juror note by saying jurors could not consider a witness’s demeanor in the courthouse while not testifying.A juror sent a note asking whether the jury could consider the demeanor of a witness outside the courtroom. The trial court properly responded the answer was “no.”id: 25776
Inadvertent inclusion of torture on the list of general intent crimes was not harmful where the jury was properly instructed that torture requires specific intent.Defendant argued the trial court erred by failing to properly instruct that torture requires specific intent. The court properly instructed on torture, but then mistakenly included it among the listed general intent crimes. However, viewing the instructions as a whole, the inconsistency could not have misled the jury.id: 25699
In defendant’s money laundering case, any error in failing to instruct on the elements of the underlying controlled substance offense was harmless.Defendant, who was convicted of money laundering under Health and Safety Code section 11370.9, subd.(a), argued the trial court erred by failing to instruct on the elements of the unlawful sale of marijuana. However, any error was harmless given the evidence that he knew the money discovered in his car came from the unlawful sale of marijuana.id: 25058
The trial court did not err by instructing the prosecution was not required to prove defendant intended to use the billy club as a weapon. Defendant was convicted of possessing a billy club in violation of Penal Code section 22210. The trial court did not err by instructing the jury that the charge did not require the prosecution to prove defendant intended to use the club as a weapon.id: 25515
Modification in robbery instruction allowing jurors to consider defendants’ size on the question of force was not improperly argumentative. The trial court did not err in modifying the standard robbery instruction to permit consideration of the physical characteristics of the defendants and victims on the question of whether force was used. Assuming the modification rendered the instruction argumentative, any error was harmless.id: 25483
The court erred by crafting an instruction for unlawful police assault by taking the definition of “unlawful” from another instruction. There is currently no CALCRIM instruction for Penal Code section 149, which criminalizes assault by a public officer under color of authority without legal necessity. The instruction crafted by the trial court informed the jurors that the issue of “legal necessity” would be described in other instructions, which it was not. Moreover, the court improperly told the jurors they should define an element of the charged crime by using the definition for “unlawful” found in CALCRIM No. 2670.id: 25383
The trial court did not err by providing a copy of the safety regulations along with the instructions where defendant was charged with violating occupational safety provisions.Defendant, a construction manager, was convicted of involuntary manslaughter and willfully violating an occupational safety or health order causing death. He argued the trial court erred by giving to the jury, along with the instructions, a copy of the text of the safety regulations he was charged with violating. However, the text of the regulations was by definition a correct statement of the law, and they were not misleading despite their length or complexity. The court did not err by providing a copy of the safety regulations along with the instructions.id: 25406
The trial court erred by using the enlarged definition of asportation for a kidnapping offense that occurred before the new definition.The trial court erred when instructing on the kidnapping-murder special circumstance by using a definition for asportation that didn’t exist at the time of the offense. Using the enlarged definition of asportation was harmless in light of the evidence regarding that element.id: 25178
The trial court was not required when responding to the jury question to instruct there is no lesser offense to transportation for sale. The trial court did not err by failing to properly respond to the jury’s question of what to do if it could not reach a verdict. The court properly responded the jurors should reach a verdict if possible, gave instruction on methods to facilitate deliberations, and ordered the jury to continue deliberating. The court was not required when learning of the deadlock on the sale part of transportation for sale count, to instruct that offense has no lesser charge.id: 25210
The court’s failure to instruct on the elements of robbery did not require automatic reversal. Defendant was convicted of two counts of robbery along with gun allegations. However, the trial court failed to give the standard jury instruction on the elements of robbery. Contrary to defendant’s argument, this was not a structural error requiring automatic reversal. The error was harmless here where the attorneys presented the elements of robbery during argument, and defense counsel conceded that whoever committed the crime was guilty of robbery.id: 25168
CALCRIM 361 was properly given where defendant claimed a lack of knowledge as to things the record shows she should have known.CALCRIM No. 361, which addresses a testifying defendant’s failure to explain or deny incriminating trial evidence should be given only when the defendant completely fails to explain or deny incriminating evidence or claims to lack knowledge about things he or she should know. The instruction was properly given where defendant claimed a lack of knowledge as to things the record showed she should have known.id: 24695
Erroneous combination of instructions that created a permissive inference that defendant was aware of his guilt when he made the false statements was forfeited for lack of an objection.Defendant argued the trial court prejudicially erred by instructing the jury during the guilt phase of the trial, with CALCRIM 362, on consciousness of guilt, along with CALCRIM 3428 on the limited use of evidence of mental illness or impairment. Defendant failed to object to either instruction at trial. While the instructions were erroneous by creating a permissive inference that defendant was aware of his guilt when he made the false statements, the error did not affect defendant’s substantial rights. Therefore, the claim was forfeited.id: 24671
The trial court did not err by allowing lay witnesses (teachers) to testify that based on their observations, defendant’s learning problems were not caused by an intellectual disability.Defense experts testified that defendant had an intellectual disability. The trial court did not err by allowing three lay witnesses - two former teachers and a counselor to testify as to their observations of defendant in school, and conclude that his learning difficulties did not stem from an intellectual disability.id: 24681
The trial court did not err by giving the optional part of CALCRIM 105, which says the lack of conversation about a person’s truthfulness can show the person has a character for truthfulness.There is an optional part of CALCRIM No. 105 - the standard credibility instruction, which informs the jurors that if people who know a witness have not discussed his character for truthfulness, they may conclude his character for truthfulness is good. The trial court did not err in giving the instruction when, in response to defense counsel’s question, a witness said that in the last 15 years, no one he knew had discussed the victim’s credibility. There is no requirement that good character testimony be provided before giving the instruction. The optional instruction did not create a false impression, and it was not an unconstitutional permissive inference because the suggested conclusion was a matter of common sense.id: 24661
Instructing with CALJIC No. 2.11.5 did not bar jurors from considering that a witness had been given immunity when it evaluated her credibility.Hohman testified under a grant of immunity. Defendant argued the court’s instruction to not consider why others were not being prosecuted (CALJIC No. 2.11.5) prevented the jury from considering that fact when assessing her credibility. However, when considered with the other properly given instructions, it wasn’t likely the jurors construed the challenged instruction as barring them from considering that Hohman had been given immunity when evaluating her testimony.id: 24536
The trial court did not err by failing to properly define “great bodily injury” in response to the jury’s request for clarification.The trial court did not abuse its discretion in responding to the jury’s request for clarification of “great bodily injury” by directing it to consider the “ordinary, everyday” meaning of the term as set forth in the “full and complete” instructions on assault. id: 21609
The trial court’s response to the juror question did not remove from the jury the ability to determine whether more than one conspiracy existed.Defendant argued the trial court failed to properly respond to the jury’s request for clarification on the concept of conspiracy. However, the court’s response referring to “a conspiracy” did not direct the jury to find that only one conspiracy existed.id: 24263
The failure to instruct on the corpus delicti requirement and to view a defendant’s statements with caution was harmless given the rape victims’ detailed accounts of the events. The trial court erred by failing to instruct sua sponte with CALCRIM No. 358 (viewing evidence of defendant’s statements with caution) and CALCRIM No. 359 (corpus delicti). However, the error was harmless given that each of the five rape victims gave detailed accounts of the incidents. And while CALCRIM No. 358 would have highlighted the fact that reported statements can be easily fabricated or mistaken, the issue of witness believeability was squarely before the jurors who were otherwise properly instructed on the factors to consider when assessing witness credibility. id: 24215
Claimed flaw in CALCRIM self-defense instruction regarding the intent to withdraw from the fight was irrelevant where the evidence did not show the victim acted with such deadly force that the defendant could not withdraw.The language in CALCRIM 3471 absent from analogous CALJIC 5.56 allowing the use of deadly force in self-defense without withdrawing from the fight only if "the defendant started the fight using nondeadly force" did not violate defendant's rights to due process, confrontation and proof beyond a reasonable doubt. The evidence showing the victim threw a beer bottle at defendant did not constitute such "sudden and deadly force" that defendant could not withdraw from the fight.id: 19658
The trial court did not have a sua sponte duty to instruct on mistake-of-fact as a defense to attempted petty theft.The trial court did not err by failing to instruct sua sponte on the claim-of-right and mistake-of-fact defenses to attempted petty theft. The court’s sua sponte instructional duties do not apply to defenses that serve to negate the mental state element, even though the court could have given a pinpoint instruction on the issue upon request by the defense. id: 23823
The trial court did not prejudicially err by instructing the jury not to consider that the witness was in shackles and in custody when evaluating his credibility.Defendant argued the trial court erred by instructing the jury not to consider the fact that a prosecution witness was shackled and in custody when evaluating his credibility. Any error in giving the instruction was harmless given the other instructions and the fact that the jury almost certainly viewed the witness’s testimony with caution and considered the reasons underlying his custody status when evaluating his credibility.id: 23960
Trial court must instruct the jury to view with caution a defendant’s statements that are criminal threats, but the court no longer has a sua sponte duty to give the instruction. A trial court has the duty to instruct a jury to consider a defendant’s out-of-court statements with caution when the statements at issue form the basis of a prosecution for making criminal threats. However, the trial court is no longer required to give the instruction absent a request from counsel.id: 24035
The trial court did not err by giving CALCRIM No. 361 instructing the jury it could draw negative inferences if defendant failed to explain or deny the evidence against him. CALCRIM No. 361 which advised the jury it could draw negative inferences if he failed to explain or deny evidence against him was not unconstitutional and did not improperly single out the defendant’s testimony. The instruction was proper where defendant gave implausible explanations for the evidence against him. Even if the instruction was improper, the error was harmless given the strength of the evidence against him.id: 24076
CALCRIM No. 359 properly states the corpus delicti rule.CALCRIM No. 359 currently states the law regarding the corpus delicti requirement. It is well established that some evidence independent of a defendant’s out-of-court admission or confession must be introduced to show that someone committed a crime. The language in the instruction stating the identity of the person who committed the crime may be proved by defendant’s statement alone is a correct statement also and there is no real danger the jury would confuse the two issues.id: 23460
The trial court should have instructed the jurors that defendant’s possession of stolen property could only be considered on the issue of guilt for the theft-related offenses. The trial court instructed the jury that it could consider defendant’s possession of stolen items on the issue of guilt. The instruction was erroneous for failing to limit it to the theft-related offenses. However, the error was harmless in light of the overwhelming evidence of guilt.id: 22255
CALCRIM No. 376 did not improperly allow jurors to infer guilt of the charged burglary based upon defendant’s possession of other recently stolen property.Defendant was charged with burglary. He argued the trial court erred by instructing with CALCRIM No. 376, which allowed the jurors to infer guilt based upon his possession of stolen property that had no connection with the charged burglary. However, the instruction cautions against inferring guilt based upon the possession of recently stolen goods. And the prosecutor’s argument limited the instruction to possession of goods taken in the charged burglary. Finally, the instruction did not reduce the prosecution’s burden of proof.id: 22361
The trial court did not err in refusing to instruct the jury on how to evaluate the credibility of a person with a mental disorder.Defendant argued the trial court erred in failing to instruct with CALCRIM No. 331, which informs the jury not to distrust the witness because of his or her developmental disability or cognitive impairment. While defendant presented some evidence of a mental disorder or impairment, he did not present any evidence that the problem caused him to be a dependent person, as required for the instruction. In fact, defendant engaged in normal daily activities without assistance.id: 22032
Mutual combat instruction was proper where gunfight in cars followed an earlier confrontation and defendant invited someone to participate.The trial court did not err by instructing the jury on mutual combat where Flores followed defendant’s car because of an earlier confrontation, gunfire was exchanged, and defendant had arranged for Martinez to come and engage in a shootout with the other car. This fact also supported the instruction on compelling another person to commit a crime - which does not require that the other person be an innocent conduit. id: 22441
The trial court did not prejudicially err by including the implied malice definition in the jury instructions. Defendant argued the trial court erred by including a definition of implied malice in the jury instructions in his capital case because there was no issue regarding that concept in his case. While the instruction was unnecessary, it did not inform the jury it could convict defendant of first degree murder based upon implied malice. id: 22275
While the expert’s answer violated the trial court’s ruling, the prosecutor’s question was proper and there was no misconduct.The trial court did not err by allowing expert testimony on the issue of intimate partner abuse. The testimony given did exceed the limits imposed by the trial court but the prosecutor did not commit misconduct by eliciting improper responses in violation of the court’s ruling where the prosecutor asked an appropriate question as to why victims of abuse don’t just leave, and the witness provided an answer that violated the trial court’s ruling.id: 22522
The appellate court took judicial notice of the fact that “Ambien” was a controlled substance so the instructional error on the enhancement was harmless. Defendant argued the enhancement for administering a controlled substance for the purpose of committing sexual penetration (Penal Code section 12022.75) must be vacated because the prosecution presented no evidence that “Ambien” was a controlled substance. The court found the issue was not whether the prosecution failed to prove an element of the offense because the jury instruction completely removed that issue from the jury’s consideration. The trial was conducted as if Ambien’s status as a controlled substance was a presumed fact. The court took judicial notice (using the Physician’s Desk Reference) of that fact and found the instructional error was harmless.id: 22155
The trial court did not err by finalizing the language of the “other crimes” evidence instruction after defense counsel’s summation.Defendant argued the trial court erred by not finalizing the language of the other crimes evidence instruction until after defense counsel’s closing argument, thus violating his right to present a complete closing argument. However, the final language of the instruction added nothing new and was within the parameters discussed by the parties and approved by the court.id: 22170
Trial counsel did not render ineffective assistance in failing to request a pinpoint instruction on defendant’s cultural defense to the charges of mayhem and torture of his son. Defendant was convicted of torture and mayhem of his 12 year-old son for not listening to him. Trial counsel was not ineffective in failing to request a jury instruction directing the jury to consider whether evidence of defendant’s cultural background raised a reasonable doubt as to whether he had the requisite intent to inflict torture and mayhem on his son when disciplining him. The instruction he proposed on appeal would have constituted an improper opinion on the evidence. id: 21826
Instructions did not suggest the prosecution did not have to prove the identity of the perpetrator.The instructions given regarding the charged offenses and special circumstance failed to specify that identity of the perpetrator was an element. However, the statement that “identity may be established by and admission” reflects a recognition that identity had be to be established. Moreover, the parties presented extensive evidence regarding identity. There was no reasonable likelihood the jury could have understood the instructions to relieve the prosecution of the burden of proving beyond a reasonable doubt the identity of the perpetrator. id: 21885
The trial court properly instructed the jury that the second type of offense within section 69, resisting an executive officer, is a general intent crime. Defendant argued the trial court erred by instructing the jury that resisting an executive officer under Penal Code section 69 is a general intent crime. The crime can be committed either by one who attempts by threat or force to deter an officer from performing his or her duty, or by one who knowingly resists by force or violence an officer in the performance of his or her duty. The mental state required depends upon the theory under which the prosecution proceeds. The trial court properly instructed the jury that the resistance prong of section 69, the theory on which the prosecution relied, was a general intent crime.id: 21864
The court’s failure to preinstruct with CALCRIM No. 101 on the basic law governing the trial was harmless.The trial court erred by failing to preinstruct the jurors with CALCRIM No. 101 which explains some of the basic rules of law and procedure. Defense counsel’s failure to request the instruction did not forfeit the issue on appeal because the court has a sua sponte duty to give it. But the court found that the error was harmless beyond a reasonable doubt in this simple trial where there was no indication of any irregularities.id: 21450
The error in extending CALJIC No. 2.15 to the murder charge was harmless where defendant admitted he was guilty of the murder.The trial court erred at defendant’s capital murder trial by instructing with CALJIC No. 2.15, which emphasizes that possession of stolen property alone is insufficient to sustain a conviction for a theft-related case. The instruction is inappropriate for non-theft related offenses. However, the error was harmless in light of the overwhelming evidence of guilt and defense counsel’s concession that defendant committed the murder.id: 21464
The trial court did not improperly interfere with penalty phase deliberations by responding to a note suggesting a holdout might be improperly focused on sympathy for defendant’s children.During penalty phase deliberations, the jurors sent a note indicating there was a great deal of tension caused by one juror’s concern with “the children.” The parties expressed a concern that the holdout juror might be improperly considering sympathy for the defendant’s children as a mitigating factor. Without questioning the jurors, the court gave an instruction regarding the proper role of sympathy in the deliberations. The court’s response was a reasonable response to the implications of the note and was not improper. id: 21698
The trial court did not improperly interfere with deliberations or coerce a verdict by responding to a note suggesting one juror was not deliberating with additional instructions noting direct evidence was not required.During guilt phase deliberations, the jurors sent a note stating one juror was not willing “to listen to reason regarding circumstantial evidence.” The court questioned only the foreperson about the note. The court later reread the circumstantial evidence instruction and gave additional instructions concerning the jury’s consideration of the evidence. In light of the foreperson’s responses to the court’s questions, the court acted properly by suspecting one juror was failing to follow the instructions, and by giving further instructions emphasizing that direct evidence is not legally required. The court did not improperly interfere with guilt phase deliberations or coerce a verdict.id: 21697
The standard instruction on juror note taking did not suggest that “note-sharing” was improper.Defendant argued the trial court erred by giving the standard instruction on juror note-taking - CALJIC 17.48. However, there was no reasonable likelihood that any juror would have understood the instruction to prohibit “note sharing” or to require steadfast adherence to personal recollection when it conflicted with another juror’s notes.id: 21688
The trial court properly instructed with CALCRIM No. 224, the general instruction on circumstantial evidence, at defendant’s mentally disordered offender trial.A jury found defendant to be a mentally disordered offender within the meaning of Penal Code section 2970. He argued the trial court erred when it instructed the jury with CALCRIM No. 224, the general instruction on circumstantial evidence, rather than CALCRIM No. 225, the instruction given when a defendant’s mental state is at issue. However, because the jury was not required to determine a defendant’s “mental state” in order to determine whether a defendant suffered from a “severe mental disorder”, the court properly instructed with CALCRIM No. 224. id: 21558
CALCRIM instruction telling jurors before deliberations that they should try and reach a verdict is not coercive.Defendant argued the CALCRIM Nol. 3550, a predeliberation instruction, is flawed because it suggests that minority jurors give way to the opinions of the majority jurors and to consider in deliberations that all criminal cases must be decided at some point. However, CALCRIM No. 3550 is not an "Allen" type instruction as it is not directed at a deadlocked jury, does not coerce jurors into abdicating their independent judgment and does not suggest that failure to reach a verdict will result in an expensive retrial. Telling jurors before deliberation that they should reach a verdict, if possible, is not coercive.id: 21093
CALCRIM Nos. 105 and 226 properly instructed the jury on how to evaluate a witness who was not totally truthful. Defendant argued CALCRIM Nos. 105 and 226 regarding a witness who was willfully false in a material part of his/her testimony was flawed because it was weaker than its predecessor - CALJIC No. 2.21.2. However, the semantic differences between the instructions are insignificant.id: 21295
CALCRIM No. 318 which allows the jury to reject testimony based on inconsistent out of court statements does not reduce the prosecution’s burden of proof. CALCRIM No. 318 informs the jury that it may reject in-court testimony if it determines inconsistent out of court statements to be true. The instruction does not reduce the prosecutor’s burden of proof and other instructions negate the possibility that the jury might believe it was bound to rely on out-of-court statements that it found to be noncredible.id: 21225
The court properly instructed with CALCRIM No. 224 where the prosecution relied exclusively on circumstantial evidence to prove the murder case.Defendant argued that when instructing on circumstantial evidence, the trial court should have given the narrower CALCRIM No. 225 rather than 224 when the only element proved by circumstantial evidence was mental state. However, the prosecution’s entire case in proving murder was based on circumstantial evidence and the trial court properly gave the broader CALCRIM No. 224. id: 20941
CALCRIM instruction on “witness willfully false” did not lighten the prosecution’s burden by suggesting the jurors “should” rather than “may” reject the entire testimony.CALCRIM No. 226, like CALJIC No. 2.21.2 instructs the jury on considering evidence where a witness has been willfully false. Defendant argued the former lightened the prosecution’s burden of proof by suggesting the jurors “should” rather than “may” consider rejecting the entire testimony. However, the semantic differences are not material and not prejudicial as the facially neutral instructions apply to all witnesses.id: 20592
Defendant was not entitled to a bifurcated trial on the issue of the extended statute of limitations.The trial court did not err in failing to bifurcate the issue of the extended statute of limitations under Penal Code section 803, subd.(g) from the issue of guilt. However, the court did err by instructing the jurors to first determine guilt and then determine (under section 803(g)) whether the case could be prosecuted since jurors might feel pressured to avoid freeing a proven child molester. The better practice would be to include the elements of section 803(g) into the definition of the crimes, and not tell the jury why those elements are present. However, the error was harmless where the finding of corroboration - the only section 803(g) issue in dispute - was corroborated by defendant's audiotaped admissions.id: 18691
The trial court did not err in failing to instruct on causation where the evidence showed defendant fully participated in torturing the victim.Defendant argued the trial court erred in failing to give instructions on causation (CALJIC No.s 3.40, 3.41, and 8.55) which prevented the jury from determining whether his own acts caused the victim's death. However, this was not a case involving a possibly independent intervening act. The questions of defendant's responsibility was one of complicity, not causation. The instructions defendant mentions would not have assisted the jury in determining defendant's responsibility for murder.id: 20083
CALCRIM No. 226 need not be modified when there is evidence that a witness testified inaccurately for reasons other than mendacity or bad faith.The trial court instructed the jurors on witness credibility with CALCRIM No. 226. Defendant sought to modify the standard instruction to inform jurors they could reject a witness’s account if she testified inaccurately even though she did not deliberately lie. However, CALCRIM No. 226, in other parts of the instruction, sufficiently educates a jury on how to assess inaccuracies caused by anything other than lying. id: 20869
Any error in failing to instruct jurors in evaluating the credibility of a child witness was harmless where the jury was given the general instruction on evaluating witness credibility. The trial court may have erred in failing to instruct the jury pursuant to CALJIC 2.20.1 on evaluating the credibility of a child, but any error was harmless where the jury was instructed with CALJIC 2.20 regarding the jury’s duty to evaluate the credibility of witnesses generally.id: 20868
The trial court did not err by instructing with CALCRIM No. 361 that the jury could consider defendant’s failure to explain or deny incriminating facts.CALCRIM No. 361, which allows a jury to consider the defendant’s failure to explain or deny incriminating facts, does not deny a defendant due process because it expressly preserves the presumption of innocence and explains the prosecutor has the burden of proving each element of the charged crimes beyond a reasonable doubt. id: 20816
Jury instructions properly referred to the prosecution as “The People”.The trial court denied defendant’s request to modify all CALCRIM instructions changing references to “The People” to “prosecution,” “government” or “state.” First, the argument has been rejected by the California Supreme Court. Next, defendant produced no evidence that use of “The People” by the prosecution has ever impacted a jury. Any error in allowing use of the term was harmless where the evidence of guilt was strong and the prosecutor never emphasized the term at trial.id: 20815
The trial court did not direct a verdict by instructing that for purposes of section 12031, a driveway may be a public place when it is accessible to the public, and the instruction did not violate the Second Amendment under Heller.Defendant was convicted of carrying a loaded firearm in a public place in violation of Penal Code section 12031, subd.(a)(1). He argued the trial court erred in responding to a jury inquiry during deliberations by suggesting that a private driveway may be a public place for purposes of section 12021 if it was accessible to the public. However, the court’s response did not constitute a directed verdict on the public place element because the instruction left the jury with the task of deciding whether defendant was on the driveway and whether the driveway was reasonably accessible to the public. Moreover, the court’s definition of “public place” did not violate the Second Amendment as defined in District of Columbia v. Heller (2008) 128 S.Ct. 2783. id: 20709
The trial court did not err in failing to give CALCRIM No. 224 at the same time it preinstructed with CALCRIM No. 223 in the definition of direct and circumstantial evidence where it read both instructions at the end of evidence at trial.A trial court does not violate a defendant’s rights to due process and a fair trial by preinstructing the jury on the definitions of direct and circumstantial evidence under CALCRIM No. 233, without also resinstructing on the method of assessing the sufficiency of the circumstantial evidence under CALCRIM No. 224, where these instructions are fully and correctly given along with the presumption of innocence and the prosecution’s burden of proof at the close of evidence and before deliberations.id: 20643
The absence in the record of the oral instructions given did not deprive defendant of a fair trial.The attorneys stipulated that the court reporter need not record the jury instructions. Unfortunately, the instructions in the clerk’s transcript did not accurately reflect the instructions given to the jury. However, the record, as settled by the parties, indicates that any error in the instructions was harmless. id: 20642
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
CALCRIM No. 3146 was not defective for failing to refer to each "alleged" crime.CALCRIM No. 3146 which states that each charged count is a separate crime was not an improper comment on the evidence due to its failure to refer to the separate "alleged" crimes.id: 20119
The use of the term "may" in CALCRIM No. 318 did not encourage jurors to ignore or neglect evidence.CALCRIM No. 318 properly informed jurors on the use of witness testimony and did not encourage jurors to neglect or ignore the testimony.id: 20114
CALCRIM No. 315 did not limit the juror's consideration to various listed factors when evaluating eyewitness testimony.CALCRIM No. 315 did not improperly limit the factors the jury could consider when evaluating eyewitness testimony. Reasonably viewed, the instruction directed the jurors attention to the listed factors but permitted them to consider other factors.id: 20113
Supreme Court reverses Ninth Circuit finding that manslaughter jury instruction violated due process.At her state murder trial, defendant claimed that she killed her husband after he had attacked her. The trial court instructed the jury that defendant was guilty only of manslaughter if she killed her husband out of an honest but unreasonable belief that she had to defend against "imminent peril." The court defined "imminent peril" as peril that a reasonable person would believe must be dealt with. California law does not require, however, that a defendant's perception of imminent peril be reasonable. In closing, the prosecutor correctly informed the jury that defendant must show that she honestly, if unreasonably, believed herself in "imminent peril." In McNeil v. Middleton, 344 F.3d 988 (2003), the Ninth Circuit held that the court's inclusion of a reasonable person standard in the definition of "imminent peril" violated due process. The Supreme Court summarily reversed holding that not all jury instruction errors rise to the level of a due process violation, that the trial court's imminent-peril definition was no so likely to have misled the jury as to violate defendant's rights, and that the prosecutor's comments alleviated any error.id: 17882
Instruction that the word "firearm" includes handgun did not amount to a directed verdict.Defendant was convicted of robbery and was found to have personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). He argued the court's instruction that the word firearm includes handgun violated due process by removing a necessary element of the use clause from the jury's consideration. However, the court did not instruct that a particular element had been established it merely instructed that the legal definition of a firearm included a handgun. Defendant also claimed the jury should have been instructed on the definition of a firearm pursuant to Penal Code section 12001, subdivision (b). However, where as here, the gun appears to be a traditional firearm there is no need for a more expansive definition.id: 13211
Since the People did not substantially rely on circumstantial evidence to prove defendant's guilt, a circumstantial evidence instruction was not required.Since the People placed primary reliance on defendant's statements that he had forcible intercourse with the victim while she was alive and that he forced his way into her home to take her money, the trial court properly denied defendant's request for CALJIC 2.01.id: 13215
CALCRIM special circumstance instructions properly directed the jury to determine the truth of the allegations only after determining defendant was the actual killer.CALCRIM Nos. 729 and 736 which define the elements of special circumstance allegations regarding murder due to the victim's color and murder while a gang member, when viewed with the other instructions given, properly directed the jurors to consider the truth of the allegations only after determining defendant was the actual killer.id: 20118
CALCRIM No. 706 which instructs jurors not to consider penalty or punishment did not bar the jury from considering the witness plea agreement.CALCRIM No. 706 which instructs the jurors not to consider penalty or punishment did not preclude the jury from considering whether the witness's credibility was impaired by his plea agreement.id: 20117
The CALCRIM expert witness instruction did not advise the jury to determine the truth of contested matters based on speculation.CALCRIM No. 332, which addresses expert witness testimony, properly instructed the jurors to assess critically the disclosed factual basis of the expert opinion.id: 20115
CALCRIM No. 704 which addresses the use of circumstantial evidence to establish special allegations does not define the burden of proof.CALCRIM No. 704 which addresses the use of circumstantial evidence to establish special allegations, does not improperly define the prosecutor's burden of proof. Rather it describes the threshold inquiry regarding the use of such evidence to establish special allegations.id: 20116
CALCRIM No. 226 did not lighten the prosecutor's burden of proof on the issue of false testimony by using the word "should" rather than "may". Defendant argued the portion of CALCRIM No. 226 describing willfully false testimony impermissibly lightens the
prosecutor's burden of proof. However, the semantic differences between CALCRIM No. 226, and its predecessor CALJIC No. 2.21.2 are not even material, let alone prejudicial. id: 19852
The trial court erred by allowing the priors to determine whether a defendant's prior conviction involved moral turpitude.The trial court erred in modifying CALCRIM No. 316 (impeding a witness with a prior felony conviction) to allow the jury to determine if the witness's felony conviction was one "involving moral turpitude" which the court defined as "involving dishonesty." However, the error was not prejudicial where the judge and prosecutor told the jurors not to find the defendant guilty because of his prior convictions.id: 20026
General CALCRIM instructions on duties of jurors and basic principles do not misstate the law.CALCRIM No. 100 does not improperly shift the burden of proof to the defendant. No. 101 does not erroneously instruct on outside influences. No. 104 correctly defines the jury's duty at trial. No. 200 does not improperly imply that bias against a defendant is permissible. No. 226 does not misstate the law on honest forgetfulness and mistaken recollection. No. 252 does not misstate the law on the union of act and intent. No. 300 does not require that the defense has a duty to produce "some evidence." No. 302 does not imply all of the prosecutor's witnesses are truthful. No. 355 does not imply a defendant has a duty to present a defense. No. 370 does not misinstruct on motive.id: 19959
CALCRIM No. 226 did not invite the jurors to consider matters outside the record by telling them to use common sense.CALCRIM No. 226, which instructs the jurors to use their common sense and experience does not invite the jury to consider matters outside the record in violation of a defendant's rights to due process.id: 19950
The CALCRIM instruction on possession of recently stolen property was not flawed for substituting the term "supporting" for "corroborating." CALCRIM No. 376, which replaces CALJIC No. 215, instructs the jury on the possession of recently stolen property as evidence of a crime. Substitution in the CALCRIM instruction of the word
"supporting" to replace the word "corroborating" in the CALJIC instruction, was not improper.id: 19806
CALCRIM instruction on the use of prior rape evidence did not violate due process.Defendant argued that CALCRIM No. 1191 violated his due process rights because it allowed the jurors to infer guilt in the current offenses from the fact that he committed the prior rape. However, similar claims involving the related CALJIC instruction have been denied and there is no material difference in the CALCRIM instruction. id: 19755
CALCRIM instructions on the use of direct and circumstantial evidence were not confusing and did not undermine the burden of proof. CALCRIM Nos. 223 and 224 concerning the use of direct and circumstantial evidence are not confusing. The former does not
require that jurors give direct and circumstantial evidence equal weight, and the latter does not undermine the burden of proof.id: 19716
Substitution of "sometimes" for "not uncommon" in the new witness credibility instruction was not improper.Defendant challenged CALCRIM 226 on determining the
credibility of witnesses. He argued the word "sometimes" in relation to people forgetting things was different from the term "not uncommon" in the CALJIC instruction, and the new instruction thus gives the eyewitness a false sense of credibility. However, the new instruction properly cautions jurors against rejecting testimony due to inconsistencies.id: 19717
New mens rea and actus reus instruction is proper as the terms "act" and "conduct" convey the same meaning. Defendant argued CALCRIM 251 on the required union of mens rea and actus reus contains an insufficient description of the latter. However, contrary to his claim, the words "act" and "conduct" essentially convey the same meaning.id: 19718
CALCRIM 355 does not imply defendant has a burden to argue the prosecution has not proved its case.Defendant challenged CALCRIM 355 which instructs jurors not
to consider defendant's failure to testify. Contrary to defendant's claim, the instruction does not imply the defendant has the burden to argue the prosecution has not proved its case.id: 19720
CALCRIM 370 informs jury that it may consider defendant's motive to commit the charged crime rather than any other motive.CALCRIM 370 which instructs on the use of motive evidence does not imply the jury is required to reach a verdict and does not inform the jury it may consider any motive defendant may have rather than the motive to commit the crime charged.id: 19721
CALCRIM instruction on evaluating witness credibility does not suggest the jury should count the witnesses for each side.CALCRIM No. 302 - Evaluating Conflicting Evidence - does not convey the erroneous impression that a jury may consider the number of witnesses who testified for each side as a factor in determining which version of events to credit.id: 19687
CALCRIM corpus delicti instruction properly requires the jury find evidence of a crime other than defendant's statements.CALCRIM No. 3592 which describes the corpus delicti requirement properly instructs that a defendant may not be convicted based on his out-of-court statement alone and that there must be other evidence that a crime was committed.id: 19688
Use of CALJIC rather than the newer CALCRIM instructions was not structural error. Defendant argued that since the California Judicial Council withdrew its endorsement of the long-used CALJIC instructions, effective January 2006, the use of those instructions constituted structural error. However, while the new CALCRIM instructions are preferred, they are not mandatory, and even if the failure to instruct with CALCRIM was erroneous, the error would be harmless because the CALJIC instructions gave correct statements of the relevant legal principles.id: 19592
The trial court did not prejudicially err by giving the general circumstantial evidence instruction in CALJIC 2.01 rather than 2.02 which explains how to evaluate circumstantial evidence of specific intent. Defendant was convicted of possession of counterfeit bills. Because he admitted possession of the bills and the only issue was whether he had the specific intent to defraud, the trial court should have given the circumstantial evidence
instruction provided in CALJIC 2.02, rather than 2.01 because the former explains how to evaluate circumstantial evidence of specific intent. However, the error was harmless since CALJIC 2.01 broadly covered all circumstantial evidence.id: 19508
Any error in failing to instruct on second degree murder at the capital trial was invited by defense counsel's statements and harmless.Defendant argued the trial court erred by failing to instruct the capital jury on all three theories of second degree murder and on involuntary manslaughter. However, any error was invited where defense counsel expressed a tactical purpose in resisting those instructions. Moreover, any error was harmless where the evidence of first degree murder was so strong that there was no reasonable probability the error affected the result.id: 19524
Instructing that a witness with development disabilities is no more or less credible than others did not reduce the prosecutor's burden of proof. Defendant was convicted of theft by a caretaker from an elder in violating of Penal Code section 368, subd.(e). She argued
the court erred by instructing the jury in accordance with section 1127g, that a witness with a cognitive impairment is not any more or less credible than other witnesses. Contrary to
defendant's claim, the instruction did not reduce the prosecutor's burden of proof or deny due process.id: 19489
The trial court did not prejudicially err in refusing to instruct on defendant's claim-of-right theory.The trial court did not prejudicially err in denying defendant's
requested claim-of-right instruction based on evidence that defendant went to the apartment intending to peacefully collect a debt. The theory was closely tied to defendant's claim of self-defense which was necessarily rejected by the jury's verdict.id: 19146
The court did not err in failing to instruct on proximate cause when responding to a question regarding the need for a principal's direct and active involvement in a crime.The deliberating jury requested further definition of "directly and actively" as used in CALJIC 3.00 which defines principals to a crime. Contrary to defendant's claim, the court did
not err by responding to the question without instructing on proximate cause.id: 19158
The trial court did not err in failing to instruct on the mistake of fact defense where that was not the defense theory of the case.The trial court did not err in failing to instruct sua sponte on the mistake of fact defense, where the defense theory was that
defendant tried to prevent the attack on the victim, not that she aided the principal under the erroneous theory that the victim was already dead.id: 19159
The departure from the standard instruction regarding mental competence was insignificant and likely a function of court reporter error.At defendant's Penal Code section 1367 competency trial, the court instructed the jury in language that, according to the reporter's transcript, differed slightly from the standard jury instruction. However, because the court was obviously reading a standard instruction, it was far more likely that the punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed by the court's oral instructions than that the court misread the standard instruction. Moreover, any minor departure by the court from the language of the standard instruction was not reasonably likely to cause the jury to misunderstand its duties.id: 19014
The order of the jury instructions did not cause the jury to convict defendant of murder without considering each of its elements.Defendant argued the jury instructions on murder and manslaughter were organized in an erroneous fashion that allowed the jury to convict him of murder before considering whether the killing occurred during a sudden quarrel or heat of passion. However, even though the written instructions placed the murder instructions before the manslaughter instructions (and the jury is told it can stop deliberating once unanimous as to the greater offense), the trial court read the oral instructions in their entirety, and the jury is presumed to have understood and considered all of the instructions regardless of the order in
which they were delivered.id: 18985
Defendant forfeited the claim of instructional error by failing to object to the court's response to the jury's request to clarify an instruction.Although defendant initially challenged the court's proposed response to the jury's request for a clarification of the modified version of CALJIC 16.201, he later approved the response and therefore forfeited the appellate claim of instructional error. Defendant further claimed that waiving the issue could create a miscarriage of justice since the instruction given - that misidentifying himself to police constitutes obstruction - created a mandatory conclusive presumption. However, there was no miscarriage of justice and the issue was forfeited.id: 18946
The trial court did not err in failing to instruct sua sponte on the burden of proof as to each defense.Defendant argued the trial court erred by failing to instruct sua sponte on the burden of proof regarding his withdrawal defense. The court instructed on the elements of withdrawal and the burden of proof. The court had no duty to go beyond these instructions and give pinpoint instructions regarding the burden of proof on each defense.
id: 18882
CALJIC No. 2.20.1 does not improperly bolster the credibility of child witnesses.Defendant argued that CALJIC No. 2.20.1 improperly bolstered the credibility of the child witness. However, the instruction neither excessively inflates a child's testimony nor usurps the jury function. Rather, it instructs the jury to consider factors such as age and cognitive development in evaluating a child's testimony.id: 18811
The court committed harmless error by instructing with CALJIC 2.11.5 where an accomplice testified.The trial court erred in instructing the jury with CALJIC 2.11.5, suggesting they not consider why another person is not on trial. Where, as here, an accomplice testifies, the instruction might suggest the jury need not consider factors it would otherwise consider when weighing the credibility of witnesses. The error was harmless in light of the other instructions on weighing the credibility of witnesses.id: 18730
The trial court did not err by failing to instruct the jury to consider the facts upon which the expert's opinion was based.The trial court did not err in telling the jury that, in assessing the testimony of an expert, it should consider the expert's opinion with the reasons given for it, without further instructing the jury to consider the facts on which the opinion was based.id: 18702
Evidence did not support the duress defense where defendant's trial testimony was contradicted by his earlier statement that he planned the murder.The trial court did not err in failing to instruct on duress because defendant failed to produce substantial evidence of the defense. Although he testified Anderson pointed a gun at him and told him to drive, he conceded that he never saw the gun. He also told police earlier that he and Anderson planned the robbery and murder.id: 18645
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
Expert testimony about the victim's mental illness did not justify an instruction that character may be considered in determining witness credibility.A psychologist, testifying for the defense, diagnosed the alleged assault victim as having a borderline personality disorder. Defendant argued this evidence supported an instruction within CALJIC 2.20 that evidence of the character of a witness may be considered in determining witness credibility. However, the testimony addressed the witness's capacity and her perception of reality, not her character for untruthfulness. The doctor provided no testimony of the witness's character for untruthfulness and there was no error in omitting the instruction.id: 18362
The court did not err in refusing to define "maliciously" when instructing on the offense of battery on a police dog.Defendant was convicted of misdemeanor battery on a police dog under Penal Code section 600. He argued the court erred in refusing defense counsel's request to define the term "maliciously." However, that term, as used in section 600, does not have a technical meaning requiring a definition.id: 18271
CALJIC Nos. 8.71 and 8.72 did not violate due process by allowing the jury to determine guilt on an element where some jurors may have had reasonable doubt.Defendant argued that CALJIC Nos. 8.71 and 8.72 violated his right to due process by allowing the jury to determine guilt where one or more jurors may have had reasonable doubt. He claimed the instructions forced jurors who had a reasonable doubt as the degree of murder (CALJIC 8.71), or as to whether the crime was murder or manslaughter (CALJIC 8.72), to conclude they may not give defendant the benefit of the doubt when deciding on the degree of the offenses. However, in light of the instructions as a whole the jury did not misinterpret the instructions as requiring them to make a unanimous finding that they had reasonable doubt as to the degree of the murder or whether the crime was murder or manslaughter.id: 17915
Agency instructions did not eliminate the elements of control and knowledge from the jury's consideration of the alleged securities fraud violation.Defendant was convicted of several counts of grand theft and making false statements in the sale of a security. He argued the court's instruction on "Agency and Agent" required reversal because it eliminated the elements of control and knowledge from the jury's consideration under Corporations Code section 25401. The instruction given referred to a principal who directly authorizes or "otherwise causes" a crime to be committed. However, the "otherwise causes" phrase cannot be interpreted without considering its modifying language which provided its context. Considered in their totality, the court's instructions adequately informed the jury of the elements required under agency liability.id: 17869
Standard motive instruction does not suggest that motive alone is enough to establish guilt.Defendant argued that the standard instruction on motive, CALJIC No. 2.51 mislead the jury into believing that motive alone was sufficient to find him guilty of murder. Although the instruction suggests motive could tend to show defendant was guilty, the balance of the instructions made clear that in order to prove the crimes charged all of the elements of each crime must be proved. CALJIC 2.51 plainly establishes that motive is not an element of the crime.id: 17675
CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property.Defendant argued that by instructing the jury pursuant to CALJIC 2.15 on the slight corroborating evidence necessary to permit an inference of guilt of robbery or burglary from evidence defendant was in conscious possession of recently stolen property, the trial court unconstitutionally lightened the prosecution's burden of proof as to both the felony murder charge and the special circumstance allegation. However, the instruction does not create an improper presumption of guilt. Rather, it provides a burglary or robbery may not be presumed from mere possession absent corroborating evidence. The inference created by CALJIC No. 2.25 is permissive not mandatory.id: 17603
Instruction not to consider penalty at the guilt phase was not likely interpreted by jurors to ignore penalties faced and received by accomplices.Defendant argued the court erred in instructing the guilt phase jurors not to consider penalty since the jury could consider the potential penalties faced and the actual penalties received by the accomplices in assessing their credibility. However, a reasonable juror would recognize the instruction was designed to prevent discussion of a defendant's punishment at the guilt phase.id: 17402
CALJIC No. 16.631 properly instructs that where possession of a valid driver's license is a complete defense, defendant has to burden to produce the license.The trial court properly instructed the jury with CALJIC No. 16.631, that where possession of a valid license is a complete defense, the burden is on the defendant to produce the license. The prosecution was not required to prove all possible defenses such as the possibility that defendant held a valid driver's license issued by another state or county.id: 17284
1999 version of CALJIC No. 2.50.01 correctly states the law on the admission of other crimes evidence to demonstrate a propensity to commit sex crimes.At defendant's rape trial the court admitted, under Evidence Code section 1108, evidence of his prior uncharged sex crimes to demonstrate a disposition to commit such crimes. He argued the 1999 version of CALJIC 2.50.01, relating to the introduction of such evidence, was flawed because it misled the jury as to the limited purpose for which it could consider the other crimes evidence, and because the instruction was likely misleading concerning the prosecutor's burden of proof. However, while the 2002 revision clarifies the instruction, the 1999 version correctly states the law.id: 17204
Instruction on motive did not remove the issue of intent from the jury's consideration.Defendant argued the trial court erred by instructing on motive pursuant to CALJIC 2.51, because the terms "motive" and "intent" are commonly understood as synonymous. However, the instructions did not use the terms "motive" and "intent" interchangeably, and there was no reasonable likelihood the jury understood those terms to be synonymous.id: 16917
Absent medical testimony establishing that defendant was suffering from a mental disease or defect there was no basis for giving CALJIC 3.32.Defendant argued the trial court erred in denying his request to instruct the jury with CALJIC No. 3.32 regarding evidence of mental disease or defect. However, without medical testimony establishing that defendant was suffering from a mental disease, defect, or disorder at the time of the crime, there was no evidentiary or legal basis for the instruction.id: 16730
CALJIC 1.00 is not improper by prohibiting jury nullification.Defendant argued CALJIC 1.00 improperly instructs a jury in a way that prohibits jury nullification by stating "you must accept and follow the law as I state it regardless of whether you agree with the law." However, jurors are restricted to the determination of factual questions and may not themselves decide what the law is or should be.id: 16672
Court did not prejudicially err in failing to define unconsciousness" for the jury.The trial court instructed the jury regarding "unconsciousness" pursuant to CALJIC No. 8.47. Defendant argued the term has a meaning peculiar to the law and that the trial court erred in refusing to provide a legal definition. However, whether or not the court had a duty to so instruct, the record shows the jury was adequately informed during closing arguments that unconsciousness does not require that a person be incapable of movement.id: 16660
Personal waivers are not necessary where defense counsel requests that instructions on defendant's decision to not testify be withheld.The trial court did not err in accepting defense counsel's waiver of a request for CALJIC Nos. 2.60 [Defendant not testifying - no inference of guilt may be drawn] and 2.61 [Defendant may rely on the state of the evidence] without obtaining a personal waiver from the defendant. The right to have those instructions given is not "fundamental" and therefore no personal waiver was required.id: 16494
Existence of reasonable doubt as to some aspects of a witness' statment does not require its negation.Defendant asked the court to instruct that if the jurors had any reasonable doubt as to the credibility of a statement by a prosecution witness, the statement must be considered untrue. However, the existence of reasonable doubt as to <U>some</U> aspect of a witness' statement does not require its negation.id: 16401
Court properly modified witness credibility instruction by suggesting that jurors consider the fact that a witness was testifying under immunity.Defense counsel requested the court to instruct the jury that the testimony of a witness who has been granted immunity should be viewed "with distrust" by adapting former CALJIC 3.18 which stated such rule concerning accomplice testimony. However, the court acted properly in denying the request and instead modifying CALJIC 2.20 (general instruction on factors to consider in determining the believability of a witness) to include "whether the witness was testifying under a grant of immunity."id: 16081
Instruction on possession of recently stolen property is proper where issues are identity and intent to steal, and there is corroborating evidence on those issues.Defendant argued that CALJIC 2.15 - possession of recently stolen property - may only be given if the sole contested issue is the identity of the burglar or robber. However, the instruction may also be given where, as here, intent to steal is contested. The instruction was proper here where ample evidence permitted the jury to find beyond a reasonable doubt possession of stolen property and intent to steal.id: 16083
Special instruction proffered by defense that tracer ammunition was manufactured for use in shotguns was an affirmative defense and the court properly refused the instruction which suggested the prosecution must prove otherwise.Defendant was charged with possession of a destructive device. The court instructed with CALJIC 12.55 and further instructed that "a destructive device . .. means tracer ammunition with regard to count four." Defendant argued the court erred in refusing to further instruct that tracer ammunition is a destructive device only if it is not manufactured for use in shotguns and that the prosecution must prove the ammunition was not manufactured for use in shotguns. However, a showing that tracer ammunition was manufactured for use in shotguns is an affirmative defense for which the defendant bears the burden of proof. Therefore, the instruction requested by defendant was legally incorrect.id: 16085
The trial court did not err in failing to advise the jurors of their power to nullify the verdict.The jury sent the trial court a note during deliberations asking whether they could find defendant guilty of robbery yet convict him of only second degree murder. The case was prosecuted as felony-murder and the robbery was never charged. Defendant argued the trial court erred in instructing the jurors they could not nullify what they considered to be an unjust law, and in threatening to remove any juror who could not follow the law. However, the trial court was not required to instruct the jurors on their power of nullification and permit them to disregard the law.id: 16086
Trial court did not abuse its discretion in delivering some instructions prior to the first witness and the remainder of the instructions after closing arguments.The trial court did not abuse its discretion in giving a portion of the jury instructions after opening statements before the first witness was called, and the remainder of the instructions after closing arguments. The process of instructing jurors at the end of a trial is long and tedious. Breaking instructions into phases of the trial does not tax the attention span of jurors, provides timely and useful information to jurors as the trial progresses, and arguably benefits the parties.id: 16087
Trial court did not err in failing to define reward during its aggravated kidnapping instructions.Defendants argued the trial court erred in failing to define the word reward in its instructions relating to the crime of aggravated kidnapping. However, because the word is not a technical term and because the defendants made no request for a definition and failed to object when the prosecutor stated his definition in closing argument the court did not err in failing to define the word reward.id: 16088
Trial court did not err in instructing with CALJIC 2.10 after both sides had rested.The trial court instructed the jury with CALJIC 2.10, limiting the use of statements made by a defendant to a medical expert witness during an examination. Defendant argued because both sides rested before the prosecutor requested the instruction, trial counsel no doubt relied on the full admissibility of the doctor's testimony in having defendant waive his right to testify at the guilt phase. However, the prosecutor's objection to the doctor's testimony included a request for a limiting instruction during trial. The trial court did not abuse its discretion in giving the instruction after both sides rested.id: 16089
Trial court's mistaken belief that simple kidnapping was a time-barred offense was the result of invited error so there was no prejudicial error in failing to instruct on the lesser included offense.Defendants were charged with murder and aggravated kidnapping. They argued the trial court erred in failing to instruct on simple kidnapping as a lesser included offense of aggravated kidnapping. The trial court's mistaken belief that simple kidnapping was a time-barred lesser offense was the direct result of the successful arguments of three defendants. The court's error in ruling the lesser offense was time-barred was therefore invited error as to these defendants. As to the defendant who did not join in the earlier motion, the error was harmless as the evidence showed he committed aggravated kidnapping or nothing at all.id: 16090
Court did not prejudicially err in omitting the first paragraph of the intoxication instruction.Defendant argued the court erred in omitting the introductory paragraph of the intoxication-related instruction CALJIC No. 4.21 - namely that for each of the crimes of which defendant was accused a necessary element was the existence of the intent to do some act or a particular mental state. However, in looking at the instructions as a whole, there is no reasonable likelihood the jurors believed they were foreclosed from considering evidence of voluntary intoxication in connection with the felony-murder charges or special circumstance allegations.id: 16064
In light of defendant's testimony regarding his statement to police the giving of CALJIC 2.03 did not violate the Miranda rule.Defendant spoke to an officer and denied involvement in the robbery before receiving any <i>Miranda</i> advisements. Defendant introduced the statement into evidence on direct examination. He could not later claim that the <i>Miranda</i> rule prohibited the giving of CALJIC 2.03 that allows the jury to draw an inference of guilt from a willfully false or deliberately misleading un<i>Mirandized</i> statement.id: 15682
Court did not err in modifying terrorist threat instruction suggesting a conditional threat qualified if the context conveyed to the victim that the threat was intended.The trial court instructed the jury on the elements of making a terrorist threat in violation of Penal Code section 422. Defendant argued the court erred by modifying the standard instruction at the prosecutors request. However, by indicating to the jury that a conditional threat could qualify as a true threat under the statute, if the context conveyed to the victim that the threat was intended, the trial court did no more than clarify the instruction.id: 15497
Supreme Court presumes scienter where necessary to separate wrongful conduct from "otherwise innocent conduct".Even where a statute contains no explicit mental element, there is a presumption in favor of scienter. However, in the present case a 5-4 majority of the Supreme Court held that this presumption "requires a court to read into a statute only that <i>mens rea</i> which is necessary to separate wrongful conduct from 'otherwise innocent conduct.'" Thus, the majority held that the bank larceny statute requires specific intent to steal or purloin because otherwise it "would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his." On the other hand, bank robbery requires only general intent - i.e., proof of knowledge with respect to the <i>actus reus</i> of the crime because "a forceful taking - even by a defendant who takes under a good faith claim of right - falls outside the realm of the 'otherwise innocent.'id: 15070
CALJIC 2.50.01, as revised, does not violate due process by permitting a conviction of the present charge based on the fact of the prior offenses.Defendant was convicted of certain sex offenses, and evidence of his prior convictions was admitted under Evidence Code section 1108. He argued CALJIC 2.50.01, as revised in 1999, violates due process because it could be understood by a jury as permitting conviction of the defendant based solely upon the fact of his prior offenses. However, the revised instruction advises the jury that even if it finds the prior offenses occurred and draws an inference regarding defendant's propensity, that inference alone is insufficient to convict defendant of the charged offenses.id: 15026
Instruction using the phrase "the People" to refer to the prosecution did not violate due process.There was no due process violation by using the standard jury instructions using the term "the People" to refer to the prosecution.id: 15044
Instructing with CALJIC 2.62 after defendant did in fact explain or deny the evidence against him was not prejudicial.The jury was instructed that they could draw an adverse inference from defendant's failure in his testimony to explain or deny evidence against him (CALJIC 2.62). He argued the instruction was improper because he <U>did</U> explain or deny the evidence against him. Any error was harmless since the instruction only applies if the jury finds that defendant failed to explain or deny evidence.id: 13205
Instruction on intent necessary for assault was not reversible per se where the instruction was requested by the defense.At defense counsel's request, the court instructed the jury that when an act inherently dangerous to others is committed with a conscious disregard for human life and safety, the act transcends recklessness and the intent to commit a battery is presumed. If counsel had a deliberate tactical purpose in requesting the instruction any error in giving it would be invited. Defense counsel forcefully argued defendant had no intent to commit a battery as he gently let the victim fall to the ground as they struggled. Finally, any error in giving the instruction was harmless where the evidence established beyond a reasonable doubt that defendant intended to batter the victims.id: 13206
Instruction on rejecting entire testimony of witness who was false on a material point did not shift the burden of proof.Defendant argued the court erred in instructing with CALJIC 2.21 on the right of a jury to reject the entire testimony of a witness who is materially false on one point. He argued the instruction could apply to his own testimony, thus shifting the burden of proof. However, neither side urged the jury to reject defendant's entire testimony. It was unlikely that if the jury found a false statement in his testimony that they would have rejected the entire testimony.id: 13207
Instruction on witness' false testimony was not prejudicial where there were no inconsistencies or false statements on material points.Defendant argued that CALJIC 2.21.2 impermissibly and prejudicially authorized the jury to believe testimony based only upon a probability that it was truthful, thus lessening the prosecution's burden of proof. The court did note that the instruction may be problematic where it affects the crucial testimony of a sole percipient witness. However, the instruction did not even come into play in the case as there were no inconsistencies on material points and the instruction was delivered based on minor inconsistencies in the prosecution witness' testimony.id: 13208
Instruction regarding a witness who is willfully false was not improper where both sides argued application of the instruction in support of their theory of the case.The trial court instructed the jury that they could reject the whole testimony of a willfully false witness (CALJIC 2.21.2). Appellant argued that based on the prosecutor's argument to the jury that appellant's testimony was false, the instruction could be viewed as applying exclusively to his testimony. He claimed the instruction thereby increased the defense burden from raising a reasonable doubt, to one of affirmatively proving a defense. However, neither side objected to the instruction and both sides argued the application of the instruction in support of their theory of the case.id: 13209
Instruction regarding speculation as to the prosecution of others is improper where such other people testify for the prosecution.CALTIC 2.11.5 which admonishes a jury not to discuss why persons other than defendant were not being prosecuted should not be given where such other persons actually appear at trial and testify for the prosecution. The instruction was improper where defendant's wife testified for the prosecution in exchange for a reduced sentence. However, such error was harmless where there was very little evidence supporting the speculative theory that she may have taken a major role in the murder and other offenses, and defendant had a full opportunity to cross-examine his wife regarding possible bias or collateral motive.id: 13210
Misreading of an instruction was harmless error where the jury received the correct version in its written form.In instructing the jury pursuant to CALJIC 3.19 (burden to prove corroborating witness is an accomplice) the court inadvertently omitted a certain clause. Defendant argued the court's error in rendering an incomplete version of the instruction violated his right to due process. However, the error was harmless because the jury received the correct version of the instruction in its written form.id: 13212
Omitting the antisympathy portion of CALJIC 1.00 did not hamper the jury in performing its proper function.Defendant argued the court prejudicially erred in failing to give the antisympathy portion of CALJIC 1.00. The failure to give that portion may have been inadvertent since the omitted portion was on the second page of the instruction and there was no discussion of an intent to omit that portion. The antisympathy portion of the instruction is simply an amplification of the initial direction to determine the facts of the case from the evidence received at trial and not from any other source. Failing to read that portion of the instruction did not hamper the jury in performing its proper function.id: 13213
Question of the validity of the Washington state custody order was a question of law and not within the jury's province to resolve.The trial court did not err in instructing the jury that the Washington state custody order was valid and recognized in California. The question involved an interpretation not only of Civil Code section 5162, but also of the full faith and credit clause of the United States Constitution and the Uniform Child Custody Jurisdiction Act to which both California and Washington are signatories. It is, therefore, a question of law and was not within the jury's province to resolve.id: 13214
The trial court did not err in admonishing the jury there was no evidence in the record to support defense counsel's claim that the defendant was framed.During closing argument defense counsel suggested the defendant was framed. The trial court did not err in later instructing the jury there was no evidence in the record to support a theory that the defendant was framed. The court has a duty to control argument that is not supported by any evidence, and the instant trial judge faithfully complied with his duty and obligation in instructing the jury as he did.id: 13216
Trial court did not err in permitting deleted instructions to be taken into the jury room.Defendant argued the trial court erred in permitting the deleted instructions to be taken into the jury room. However, the jury was admonished not to consider the deleted material. Moreover, defense counsel did not request that the jury be given clean copies of the instructions nor did he object to the written instructions going to the jury. There was no error.id: 13218
Trial court had no sua sponte duty to define knowingly for the jury.Defendant was convicted of Medi-Cal fraud. Since the jury was entitled to use the common meaning of the word knowingly,no special instruction on the meaning of the term was required sua sponte.id: 13220
Trial court had no sua sponte duty to define reckless indifference to human life after instructing on the felony murder special circumstance.Defendant challenged the adequacy of the jury instruction (CALJIC 8.80.1) concerning the felony murder special circumstance. The instruction provides that a defendant who is not the actual killer and does not aid and abet the killing may be found liable for the special circumstance of felony murder if he acted with reckless indifference to human life ... Defendant argued the court had a sua sponte duty to define the term reckless indifference to human life. However, the term has a common meaning understood by the average juror, that is, a conscious disregard for the possibly fatal consequences of one's actions. Therefore, the trial court had no duty to instruct on the definition of the term in the absence of a request therefor.id: 13221
Trial court's instruction on the use of the name Jane Doe by the alleged victim did not lighten the prosecution's burden.The alleged victim of the sex offense was identified as Jane Doe rather than by her true name, pursuant to Penal Code section 293.5. Defendant argued that the instruction mandated by section 293., subdivision (b), creates the impression that the trial court believes the alleged victim is an actual victim, thereby lightening the prosecution's burden of proof. However, based on the instructions as a whole, no improper inference could be drawn from the trial court's explanation of the use of the name Jane Doe by the alleged victim.id: 13223
Acting in concert instruction did not misstate the law by implying that acting in concert is synonymous with aiding and abetting.The trial court instructed that acting in concert means two or more persons acting together in a group sexual attack . . . including those who aid and abet a person in accomplishing it. Appellant argued the instruction misstates the law as it prohibits the jurors from making a separate determination of acting in concert once aiding and abetting has been found. However, the instruction did not remove from the jury the issue whether appellant acted in concert.id: 13224
Sound mind instruction did not amount to a conclusive presumption that lightened the prosecutor's burden of proof on the element of specific intent.Defendant argued the instruction that the jury should assume that he was of sound mind at the time of his alleged conduct amounted to a conclusive presumption that lightened the prosecutor's burden of proof on the element of specific intent applicable to the charges against him. However, given the full spectrum of instructions on the issues of intent and voluntary intoxication it is not reasonable likely the jury would have discerned in the presumption of mental soundness a presumption of sobriety.id: 13225
Willful and wanton as used in provision regarding evading a police officer were not technical terms requiring definitions sua sponte.Defendant argued the trial court erred in failing to define the terms willful and wanton as they were used in the instruction given on evading a pursuing police officer (Vehicle Code sections 2800.1 and 2800.2). However, neither term as used in section 2800.2 embraces a technical legal meaning and no sua sponte instruction was required.id: 13183
CALJIC 2.20.1 did not suggest that a child witness is more credible than an adult witness.Defendant was charged with the continuous sexual abuse of a child. He argued the trial court erred by instructing the jury pursuant to CALJIC 2.20.1, that it should disregard the fact that because of age and the level of cognitive development a child may perform differently as a witness from an adult. He claimed this instruction foreclosed the jury's independent consideration of the child witness' credibility. Contrary to the defendant's assertion the instruction does not advise the jury that because a child performs differently on the witness stand, he or she for that reason alone is more credible than a nonchild witness.id: 13184
CALJIC 2.21.2 did not reduce the burden of proof as applied to prosecution witnesses when viewed in light of all the instructions given.Defendant argued the court erred in instructing with CALJIC 2.21.1 that a witness materially false in some way is to be distrusted in others and the testimony may be rejected unless the jury believes the <U>probability of truth</U> favors his or her testimony in other particulars. Defendant argued the instruction lowers the burden of proof by permitting the jury to assess prosecution witnesses under a probability of truth standard. However, the jury was directed to consider the instructions in light of all the others. In evaluating the entire charge to the jury, there was no error in delivering CALJIC 2.21.2 notwithstanding its application to the victim's testimony.id: 13185
CALJIC 2.21.2 regarding a witness who is willfully false in part of his or her testimony did not reduce the burden of proof by allowing the jury to assess prosecution witnesses by seeking a probability of truth.The trial court instructed with CALJIC 2.21.1 regarding a witness who is willfully false in a material part of his or her testimony. The instruction states the jurors may reject the whole testimony unless you believe the <U>probability of truth</U> favors his or her testimony in other particulars. The instruction did not lighten the prosecutioner's burden of proof by allowing the jury to assess prosecution witnesses by seeking only a probability of truth in their testimony.id: 13186
CALJIC 2.27 regarding the weight to be given the uncorroborated testimony of a single witness, while inartfully worded, did not lighten the prosecution's burden of proof.The trial court instructed with CALJIC 2.27 regarding the weight to be given to the uncorroborated testimony of a single witness. Defendant argued the instruction failed to distinguish between prosecution and defense testimony. He pointed to his uncorroborated testimony that the victim had a knife and claimed the defense is only required to raise a reasonable doubt, not establish a fact. However, while the instruction's wording should be improved the jury was fully instructed on the burden of proof.id: 13187
Circumstantial evidence instruction did not permit a conviction where evidence showed a defendant was apparently guilty.When instructing on circumstantial evidence the court stated If, on the other hand, one interpretation of such evidence `appears' to you to be unreasonable, it is your duty to accept the reasonable interpretation and to reject the unreasonable. Defendant challenged the use of the word appears. However, the plain meaning of the instruction informs the jury to reject unreasonable interpretations of the evidence and to give defendant the benefit of any reasonable doubt. No reasonable juror would have interpreted these instructions to permit a criminal conviction where the evidence showed defendant was apparently guilty, yet not guilty beyond a reasonable doubt.id: 13188
Conflict in witness testimony justified giving the instruction on witness credibility.A number of prosecution witnesses testified that there was a great amount of blood in the apartment after the killing. Defendant testified that he saw none when he entered. Such testimony justified the giving of CALTIC 2.21 that a witness willfully false in one part of his testimony is to be distrusted in others.id: 13189
Court did not abuse its discretion in failing to provide the jury with written instructions.The trial court did not abuse its discretion in failing to provide the jury with written guilt phase instructions. The jury took only one day to reach its guilty verdict. No questions were raised regarding any of the instructions, and no request for rereading instructions was made. Thus, the record contained no evidence indicating the jury was misled or confused by the oral instructions.id: 13190
Court did not err in instructing the jury that the question of whether defendant's murder of an earlier victim was potentially a capital crime was an unresolved question of law.At the time of trial, it had not yet been decided whether a prior conviction of murder, to constitute a special circumstance had to precede the subsequent murder conviction. In cross-examining the defendant about admitting to a murder, the prosecutor asked whether he was not trying to cut his losses by admitting to a noncapital offense to bolster his credibility and gain acquittals on the four capital offenses. Defendant replied that he thought the murder he admitted to could be amended to allege the special circumstance. The trial court instructed the jury there was uncertainty in the law and the proper interpretation has yet to be decided by the courts. Defendant argued the court had a duty to decide the question of law at that time. However, what was relevant to the jury's deliberation was not how the courts might interpret the law, but how defendant understood the risks of confessing to the murder.id: 13191
Court did not err in refusing to instruct on specific Insurance Code provisions where the jury was otherwise properly instructed on the defense theory.Defendant was charged with conspiracy to commit murder. He claimed that he knew the Insurance Code provisions would prevent collection on the victim's life insurance policy, and thus he had no motive to kill her. He argued the court's refusal to instruct the jury on specific provisions of the Insurance Code combined with the giving of CALJIC 1.00 (disregard law given by attorneys that conflicts with law provided by the court) deprived him of an integral part of his defense, thus creating reversible error. However, because the Insurance Code sections were presented as factual information in support of a defense theory (on which instruction was given), the court's refusal to include the Insurance Code provisions in its instructions to the jury was proper.id: 13192
Court did not err in refusing to instruct the jury to consider the state's specific promises and payments in evaluating credibility.The court instructed the jury pursuant to CALJIC 2.20 regarding witness' potential bias or motive for giving testimony. Defendant argued the court erred in refusing to further instruct that the jury must also consider the state's specific promise and payments to certain prosecution witnesses in evaluating credibility. However, the requested instruction was too argumentative. Moreover, the defense ably attacked the witnesses' credibility throughout the trial.id: 13193
Instructing to reject unreasonable interpretations of the of the evidence was not improper.The court instructed the jury that if one interpretation of the evidence seemed reasonable and the other unreasonable, their duty was to accept the reasonable and reject the unreasonable. Appellant argued that such instruction would compel the jury to reject a defense theory which is unreasonable but is true. However, the instruction merely told the jury to reject interpretations of circumstantial evidence that are so incredible or so devoid of logic that they can, beyond a reasonable doubt, be rejected.id: 13203
Instructing with CALJIC 2.01 to accept the inference pointing to defendant's innocence did not undermine the burden of proof.The trial court instructed with CALJIC 2.01 that if circumstantial evidence is susceptible of two interpretations, one of which points to guilt and the other to innocence, you must adopt the one which points to innocence. Contrary to defendant's argument, the instruction did not characterize the jury's choices as guilt or innocence, thereby undermining the burden of proof and implicating defendant's due process rights.id: 13204
Court did not err in failing to define "forcible and atrocious" from CALJIC 5.10 where that instruction was mere surplusage and jurors were fully instructed on self-defense.The court delivered self-defense instructions including CALJIC 5.10 - Resisting Attempt to Commit Felony. The instruction used the terms "forcible and atrocious crime." Defendant argued it was prejudicial error to omit CALJIC 5.16 which defined these terms. However, the multiple self-defense instructions fully informed the jury about both self-defense and unreasonable self-defense. CALJIC 5.10 was surplusage and should not have been given. If defendant wanted certain terms clarified he had a duty to request the clarification.id: 13165
Evidence of defendant's involvement in the robbery was sufficient to corroborate the inference of guilt from possession of the stolen property.Defendant argued the trial court's instructing with CALJIC 2.15 violated his due process rights because the instruction allowed the jury to infer his guilt of robbery from circumstances, i.e., possession of recently stolen property plus slight corroboration, that did not afford a rational basis for such inference. However, the corroborating evidence of defendant's involvement was as follows: attempts had been made to remove serial numbers from the weapons and the barrels of the shotguns had been shortened; defendant admitted he was present when the victim was beaten and killed; he gave the police a false alibi. This evidence corroborated the inference of guilt from the possession of the stolen property. Thus, the jury could rationally make the inference the presumption permits.id: 12962
The trial court did not have to advise the jury of its power to nullify a verdict.Defendant argued the court erred in refusing to tell the jury (in response to a question during deliberations) that if it had unanimously found that defendant was guilty of the greater offense it could nonetheless return a verdict of guilty of the lesser offense. However, even though the jury has the power to acquit even if its verdict is contrary to the law and evidence, such a response to the jurors would have been tantamount to telling them to let their emotions govern their decision and to disregard the law.id: 12703
Court's comments made during deliberations regarding the credibility of the defendant were authorized under the California Constitution.During deliberations the jury requested that the instructions be reread. The trial court then observed that defendant had made inconsistent statements concerning his whereabouts during the pertinent period, and that defendant's testimony as to his presence in the residence, while explaining the presence of the bloody palm print, did not explain the two other dry palm prints, causing the court to entertain doubt as to defendant's credibility. The court did not distort any testimony or comment on defendant's guilt or innocence. The court also admonished the jury it was free to disregard the comments. The remarks fell within article VI, section 10 of the California Constitution which permits the court to comment on the credibility of witnesses. Moreover, defendant was not denied due process by the court's failure to provide notice of its intended comments.id: 12170
CALJIC 2.04 does not require judicial proceedings to actually be in progress when the attempt to procure false testimony or fabricate evidence is made.Defendant argued CALJIC 2.04 was erroneously given because there was insufficient evidence that he attempted to persuade a witness to testify falsely. He acknowledged that his brother admitted at trial defendant asked him to lie about the arm injury, but he maintained his brother's testimony fell outside the scope of CALJIC 2.04 because the incident occurred before judicial proceedings had been instituted. However, CALJIC 2.04 does not require judicial proceedings to actually be in progress when the attempt to procure false testimony or fabricate evidence is made.id: 10830
Instruction on provision relating to possession of drug money does not negate burden of proof by requiring the defendant prove gainful employment.Defendant was convicted of possessing more than $100,000 in drug proceeds. She argued that Health and Safety Code section 11370.6 and CALJIC 12.37 unconstitutionally affected the burden of proof by negating the requirement of proof beyond a reasonable doubt and by requiring defendant to prove gainful employment. However, all the instruction does is direct the jury's attention to potentially relevant evidence. It does not limit the jury's inquiry to such evidence, does not require the jury to attach any particular weight to it, and does not limit the possible inferences to those pointing toward guilt. The gainful employment provision is simply a factor for the jury to consider in deciding whether the elements had been proved.id: 10743
Court did not prejudicially err in instructing that possession for sale requires knowledge that the drugs would be eventually sold by someone else.Defendant argued the trial court erred by instructing the jury that possession of cocaine for sale requires only knowledge that the drugs would be sold eventually by someone else. However, any error the trial court committed by injecting the concept of knowledge into the definition of intent was harmless. The emphasis in the juror's question prior to the instruction was whether a defendant must personally sell the substance, not whether knowledge was the requisite standard. Moreover, when instructing on conspiracy, the court told the jury that specific intent to commit possession with intent to sell was required and knowledge was not mentioned. The jury necessarily found defendant had the requisite specific intent.id: 10704
Enumeration of additional rights did not render hate crime instruction overly broad where the court specifically focused the jury's attention.The court's basic instruction on the hate crime statute, Penal Code section 422.7 specifically required the jury to find defendant brandished a gun at the victim in violation of his right to be free from the threat of violence. Defendant argued the court's enunciation of further rights under Civil Code section 43 including the right to be free from personal insults (although some insults are protected speech) rendered the basic instruction on section 422.7 overly broad. However, by specifically focusing the jury's attention and the determinative process, the instruction eliminated any real possibility the jury might have been confused and misled by the court's additional enunciation of rights.id: 10505
Court did not err in instructing that defendant's prior conviction was a felony since this is not a question of fact for the jury.Defendant was convicted of possession of a firearm by a felon (Penal Code section 12021, subdivision (a)). The prior conviction that formed the basis of the charge was a petty theft with a prior conviction (section 666). Defendant argued the trial court erred in instructing that the prior conviction was a felony. However, whether an offense is a felony or a misdemeanor is a question of law for the court and not a question of fact for the jury. Moreover, the record established the prior conviction was a felony. That the verdict form in the prior case showed defendant was only convicted of petty theft was not dispositive, since defendant had admitted the priors alleged as elements of the offense to prevent the jury from learning about them.id: 10417
CALJIC 2.15 does not permit an improper inference, but instead, protects a defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.Defendant argued that notwithstanding the express admonition in CALJIC No. 2.15, that possession alone is insufficient to warrant a conviction of robbery or burglary, the instruction in effect tells jurors that such evidence, if corroborated is sufficient. He claimed this permitted an inference or presumption based on insufficient foundational facts and thereby violates a defendant's rights under the Sixth, Eighth and Fourteenth Amendments. However where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, CALJIC 2.15 protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.id: 10413
The trial court properly instructed on the lesser included offense of voluntary manslaughter, despite defendant's objection and willingness to gamble.Defendant was charged with murder. Evidence was presented from which the jury could have concluded defendant was guilty of voluntary manslaughter rather than murder. For tactical reasons he asked the court not to instruct on voluntary manslaughter but the request was denied. He was convicted of voluntary manslaughter. Despite a willingness to gamble a defendant may not deprive the jury of an opportunity to consider whether he or she is guilty of a lesser offense included in the crime charged. The court should instruct on any lesser included offense supported by the evidence regardless of the defendant's opposition. The court therefore acted properly when over defendant's objection, it instructed the jury on voluntary manslaughter.id: 10254
Provocation is not a complete defense and the court had no sua sponte duty to instruct on the relationship between provocation and first and second degree murder.Defendant argued the trial court erred by not giving a sua sponte instruction on the relationship between provocation and first and second degree murder. However, provocation was not a complete defense but rather addressed the element of deliberate intent and resembled a pinpoint instruction. The trial court therefore had no sua sponte duty to instruct. Moreover, there was no evidence in the record to support provocation in any event.id: 10247
The revised CALJIC 3.40 correctly embodies the test of proximate cause.Appellant was convicted of first degree murder and second degree robbery. He argued the trial court erred by giving an erroneous causation instruction (CALJIC 3.40 1992 revision). However, the trial court properly instructed that for criminal liability to be found, the cause of the harm not only must be <U>direct</U>, but also not so remote as to fail to constitute the <U>natural</U> and <U>probable</U> consequences of defendant's act. The revised CALJIC 3.40 correctly embodies the test of proximate cause.id: 10174
CALJIC 2.20.1 does not instruct the jury that it may not consider a child's age and cognitive ability in evaluating his or her credibility.Defendant argued the trial court erred in instructing the jury with CALJIC 2.20.1<197>not to discount or distrust the testimony of a child solely because he or she is a child. 2.20.1 does not instruct the jury that it may not consider a child's age and cognitive ability in evaluating his/her credibility as a witness. Moreover, the instruction does not invade the province of the jury as determiners of credibility<197>it simply requires the jurors not to find child witnesses unreliable solely because of their age.id: 10075
Court properly refused proposed instructions that pinpointed specific evidence.Defendants argued the trial court erred in refusing instructions on the relationship of certain evidence to reasonable doubt. However, the proposed instructions pinpointed specific evidence, i.e., the number of people allegedly in the room during the molestations, as well as the theory of the defendants' cases which amounted to an improper attempt to obtain from the court an indication of opinion favorable to them with regard to that fact.id: 9857
Court properly refused to modify CALJIC instructions on insurance fraud to include the word "knowingly" where the instructions already required a "specific intent."Defendant was convicted of insurance fraud under Insurance Code section 1871.1, subdivision (a) which makes it unlawful to "knowingly present a false or fraudulent claim for payment of a loss." Contrary to defendant's claim the trial court did not err in refusing to insert the word "knowingly" into CALJIC Nos. 15.40 and 15.41. Both instructions required the jury find defendant presented a writing in support of a false claim and that it be done with the specific intent to defraud. The element of "specific intent to defraud" is more rigorous than the concept of "knowingly" and includes the latter.id: 9858
Court was not required to explain while engaged in the commission of a rape absent a request.The trial court instructed the jury that in order to find the felony-murder-rape special-circumstance allegation true, it was required to find, among other facts, that the murder was committed while defendant was engaged in the commission of a rape. Defendant argued the court erred in failing to define the phrase while engaged in sua sponte. However, the phrase was not technical and the court was not required to give an instruction as to its meaning absent a request.id: 9859
Court was not required to instruct sua sponte with 2.01 where the only circumstantial evidence relied on related to whether defendant was the shooter.Defendant argued the trial court erred in failing to instruct sua sponte on the sufficiency of circumstantial evidence as set forth in CALJIC 2.01. The instruction must be given when the prosecution substantially relies on circumstantial evidence to prove guilt. Here the circumstantial evidence related only to whether defendant was the one who actually fired the shots. This point alone did not constitute substantial reliance.id: 9860
Court was not required to instruct that defendant chose not to testify because he was scared and nervous.The court instructed the jury to draw no inference or discuss defendant's failure to testify in his own behalf. Defendant requested a modification that would have alerted the jury to the particular reason for the failure: fear or nervousness. However, the court is not required to outline hypothetical reasons for defendant's failure to testify. Such comments may be left for a defendant's closing argument if counsel desires to explain the matter further.id: 9861
Court was not required to instruct sua sponte on the weight to be given to evidence of the narcotics dog identifying cocaine on the bank deposit.Defendant was convicted of possession of more than $100,000 from drug proceeds (Health and Safety Code section 11370.6). She was arrested after a narcotics dog alerted to her bank deposit. She argued the court should have instructed sua sponte on the weight to be given to dog tracking evidence. However, the case did not involve dog tracking; it involved the identification of cocaine on money. A sua sponte instruction was not necessary.id: 9862
Court was not required to modify the admissions instruction to fit each possible interpretation the jury might give to defendant's extrajudicial statements.Defendant's sole defense to the robbery charge was that he had no intent to steal. He argued that the effect of CALJIC 2.71 was to tell the jury to view skeptically his statement to the police that he did not intend to steal the car. When a defendant has apparently made inconsistent statements regarding the circumstances of the offense, he denies making some of the statements, but relies on others which have an arguably exculpatory meaning, the trial court need not sua sponte modify the instructions to fit each possible interpretation the jury may give to defendant's extrajudicial statements.id: 9863
Court's comments discouraging trial testimony readbacks did not deny defendant's right to a fair trial.The trial court's comments and instructions regarding trial testimony readbacks were not improper. Although the court's comments discouraged the readback of testimony, telling the jury about the burdens of such rereading, it qualified its remarks by informing the jury it should not hesitate to request readbacks where such were really needed.id: 9864
Defendant was not denied due process where the court instructed after closing argument in response to juror questions that he could be liable for murder as an indirect participant of the robbery where defendant did not request additional argument on the issue.Defendant was convicted of murder during the commission of a robbery. He argued the court erred in instructing during deliberations the jury could find the special circumstance allegation true on an aiding and abetting theory because counsel did not have an opportunity to address this newly introduced theory in closing argument. However, defense counsel did not seek leave to reopen arguments to address this new theory of culpability on the special circumstance allegation. By failing to request additional argument defendant waived his objection to counsel's lack of an opportunity to present an argument on the aiding and abetting special circumstance instruction.id: 9866
Evidence of defendant's solicitation of the murder of a prosecution witness justified the instruction on other crimes evidence to prove identity.Defendant argued the trial court erred in giving CALJIC 2.50, pertaining to evidence of other crimes admitted to prove the identity of the perpetrator. However, defendant's act of soliciting the murder of a critical prosecution witness was highly probative of defendant's consciousness of guilt, which in turn was probative of his identity as the perpetrator of the charged offenses.id: 9867
Failure to preinstruct on all elements of the provocative act doctrine was not prejudicial where the jury was ultimately fully instructed on the doctrine.Defendant argued the trial court prejudicially erred in voir dire by erroneously preinstructing the jury on the nature and elements of the provocative act doctrine, the theory used to convict defendant of first degree murder. However, the instructions taken as a whole, stated the rule of the provocative act doctrine fully and clearly. The fact that the court did not explain all elements of the doctrine during voir dire did not devalue the complete written instructions delivered to the jury before they began deliberations.id: 9869
Giving of CALJIC 2.62 was proper where defendant failed to deny or explain inculpatory evidence and gave a bizarre and implausible explanation.Appellant argued the trial court erred in giving CALJIC 2.62 - the failure to explain or deny evidence. However, the instruction, if justified by the evidence does not violate a defendant's privilege against self-incrimination; deny the presumption of innocence or violate due process. When a defendant testifies but fails to deny or explain inculpatory evidence or gives a bizarre or implausible explanation, the instruction is proper.id: 9870
Instructing jurors regarding threats to witnesses by defendant's brother was not erroneous where there was some testimony that defendant authorized the threats.There was evidence that defendant's brother warned certain witnesses not to testify. The trial court ruled evidence that certain witnesses had been threatened was relevant to their state of mind and demeanor while testifying and the jury was so instructed. Defendant argued there was no evidence adduced at trial that he either authorized or instigated the threatening of prosecution witnesses. However, defendant's cell mate stated defendant said that several witnesses had been threatened and told to testify in a certain way. While this testimony may not be direct evidence that defendant ordered his brother to threaten witnesses it was circumstantial evidence that he authorized his brother to do so. Because there was some evidence linking defendant to the threats, the instruction was not an abuse of discretion.id: 9871
Voluntary intoxication instruction did not tell jurors intoxication is a complete defense and did not require defendant to prove his innocence.The trial court instructed with CALJIC 4.21.1 on the legal significance of voluntary intoxication. The instruction states that no act is less criminal because of the condition and the exception to the general rule lies where defendant did not possess the required specific intent because of the voluntary intoxication. Defendant argued the instruction erroneously told the jury there was an exception to the rule that voluntary intoxication is not a defense. However, the exception is not that intoxication may be a complete defense, but rather, that the jury may consider intoxication in determining whether defendant possessed the required specific intent. Moreover, contrary to defendant's claim, the instruction was not confusing. Finally, the instruction did not shift the burden to defendant unless defendant proved sufficient intoxication to invoke the exception. It did not even remotely suggest the jurors were obligated to find defendant acted with specific intent.id: 9840
Court's modified kidnap-for-robbery instruction correctly stated that forced movement for a substantial distance cannot be incidental to the robbery.Defendant was convicted of kidnap for robbery (Penal Code section 209, subdivision (b)). He argued the trial court erred in instructing the jury by using a modified version of CALJIC 9.54 pertaining to kidnap for robbery, claiming the modification amounted to a directed verdict on one element of the offense depriving him of his right to a jury determination. However, the modified language correctly advised jurors that as a matter of law forced movement for a substantial distance cannot be incidental to the robbery.id: 9750
Defendant invited the court's error in failing to fully instruct on the elements of simple kidnapping.Defendant was charged with kidnapping for purposes of extortion or to obtain money or something of value. He requested an instruction for simple kidnapping under section 207, subdivision (a), and was convicted of that offense. He argued the court erred in failing to instruct that for purposes of simple kidnapping under section 207, if the person forcibly moved is incapable of giving consent (i.e., a three year old child) then the People must prove the movement was done for an illegal purpose or with an illegal intent. However, counsel never mentioned this element and may have had a tactical reason for failing to mention it. Moreover, the evidence did not even warrant the instruction on simple kidnapping. The invited error doctrine precluded defendant from complaining about giving the instruction he requested.id: 9753
Proposed conspiracy instructions were properly refused where appellants were charged with felony murder and prosecuted on an aiding and abetting theory.Appellants were tried on the theory they aided and abetted the robbery in the course of which the victims were murdered, rendering them liable under the felony-murder rule. Although they were not charged as conspirators, they argued the court erred in denying the proposed conspiracy instruction that they could only be liable for an act in furtherance of the plan or one that was a probable result of the plan. This supported their argument that the acts of the actual gunmen were outside the common design. However, the court correctly refused appellant's request to engraft into the instruction on aiding and abetting the felony murder - the theories under which appellants were charged - those limiting concepts of conspiracy law which might have assisted them had they been charged with committing robbery as conspirators.id: 9582
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245