Cautionary/Curative/Limiting
Category > Cautionary/Curative/Limiting
Updated 2/22/2024The trial court erred in instructing that the jury view defendant’s unrecorded statements of his guilt with caution.The trial court erred in instructing with CALCRIM No. 358 that the jury should consider with caution defendant’s unrecorded statements because his defense was based on the premise that his recorded statements were coerced and false. Defendant did not want the instruction, there was no sua sponte obligation to give it and defendant was entitled to reject it. However, the error was harmless given the strength of the evidence presented. id: 27029
The erroneous failure to dismiss the gang charges and enhancement allegations following the 995 motion led to the introduction of inflammatory gang evidence at trial and violated the defendants’ due process rights.Defendants were convicted of attempted murder and aggravated assault, but acquitted of the gang offense and enhancement allegation. The trial court erroneously denied the defendants’ Penal Code section 995 motion to set aside the gang charges and enhancement allegations because the evidence adduced at the preliminary hearing failed to show the “Surenos” are a single criminal street gang, and there was insufficient evidence to show the defendants’ participation in the gang was anything more than passive or nominal. The gang evidence was inflammatory and prejudicial on the attempted murder charges. Admission of the evidence violated defendants’ due process rights and required reversal of the convictions.id: 24515
That the accomplice’s testimony was consistent with the victim’s description of the robbery did not constitute independent evidence corroborating defendant’s involvement in the crime. No evidence corroborated the accomplice’s claim that defendant was present at the scene of the Knoefler robbery. The fact that the statement was consistent with the victim’s description of the crime or physical evidence showed the accomplice was at the scene but was not independent evidence of the offense. However, there was independent evidence corroborating the accomplice’s testimony as to the other two robberies so reversal was only required as to the Knoefler robbery. id: 24295
The trial court erred by instructing that the defendants were accomplices as a matter of law where each denied guilt and blamed the other. Defendants were charged as aiders and abettors. Both testified and each denied guilt but blamed the other. The trial court erred by instructing with CALCRIM No. 325 that the defendants were accomplices as a matter of law. The error was harmless in light of the evidence showing defendants intended to facilitate the robbery. Even though one defendant included this instruction in his packet given to the court and the other failed to object, the error was not invited absent evidence the defendants deliberately chose to request the instruction. id: 24168
The trial court violated defendant’s confrontation clause rights when it allowed the prosecutor to ask a witness unlimited leading questions about his out-of-court statements. A prosecution witness refused to answer any questions. The prosecutor then asked more than 100 questions regarding the witness’s out-of-court statements to prove defendant was guilty of several crimes. The questions created the illusion of testimony and the process deprived the defendant of a fair trial because he couldn’t exercise his right of cross-examination. Moreover, the court’s instructions that cautioned the jurors not to regard the prosecutor’s questions as evidence did not overcome the extreme prejudice to the defendant. The court should have granted defendant’s mistrial motion. id: 23869
The trial court erred by failing to instruct that the testimony of an in-custody informant needs to be corroborated.The trial court erred in failing to instruct the jury sua sponte that the testimony of a so-called jailhouse informant must be corroborated. However, the error was not prejudicial under the Watson standard because evidence connecting defendant to the murder corroborated the testimony of the in-custody informant.id: 23263
The trial court erred in failing to instruct the jurors to consider defendant’s oral statements with caution in the criminal threats case.Defendant was convicted of attempted murder and three counts of criminal threats. The trial court erred by failing to instruct sua sponte that the jury must consider her extrajudicial, oral statements with caution. The error was harmless where there was no reasonable probability the jury would have reached a better result had the cautionary instruction been given.id: 22862
Curative instruction to disregard the officer’s willful reference to defendant’s statement which had been prohibited was insufficient to undo the damage.A police officer witness intentionally violated a court order prohibiting any mention of the defendant’s statement. The trial court’s subsequent instruction to the jury to disregard the statement could not undo the damage and the conviction was reversed. id: 21387
Officer's testimony regarding a codefendant implicating defendant violated Crawford as well as Aranda-Bruton, and the limiting instruction was insufficient to cure the violation.Contrary to the trial court's express warning, a police officer testified a codefendant stated that he saw defendant force the victim into the car. The testimony constituted Aranda-Bruton error. It also constituted confrontation clause error under Crawford v. Washington (2004) 541 U.S. ___, even though the court instructed that statements by one any defendant after arrest were not to be considered against any other defendant. Such a limiting instruction is insufficient to cure Crawford error. The error was harmless as to the sex offenses where the statement had less impact, but required reversal of the kidnapping charge and the one strike kidnapping allegation.
id: 18134
Court erred in failing to give the requested cautionary instructions on informers' drug addicts and immunized witnesses.Although the trial court was under no sua sponte duty to give cautionary instructions regarding the testimony of informers, drug addicts or immunized witnesses, appropriate instructions should have been given upon request. The error was harmless where the testimony in issue was not the sole basis for the convictions and much of the information was covered in the instructions regarding credibility of witnesses.id: 13267
Court erred in failing to instruct the jury to view defendant's admissions and adoptive admissions with caution.The trial court erred in failing to instruct the penalty jury to view defendant's admissions and adoptive admissions with caution. However, the error was not prejudicial given the significant corroborating evidence that supported each admission.id: 13269
Court erred in failing to give cautionary instructions regarding accomplice testimony where the shooter implicated appellant in a taped statement.Daryl was the actual shooter in the case. Appellant was also convicted of murder and robbery. There was substantial evidence upon which the jury could find that appellant was the person (referred to as Wine-O) that Daryl implicated in his taped statement to the police. Based on the contents of that statement the court should have given the jury cautionary instructions regarding accomplice testimony. However, failure to give the instructions was harmless given the strength of the prosecution's case against appellant and the fact that most of Daryl's testimony in this regard was cumulative as the same evidence had been presented by more credible witnesses.id: 13266
Court erred in failing to give cautionary instruction regarding defendant's admission where the statement was used to prove part of the case.Appellant was convicted of possession of narcotics found in his motel room. He argued that because the motel manager testified that appellant telephoned him on the afternoon of the arrest and was saying something about renting the room for a lady the court should have instructed the jury with CALJIC 2.71 that it should view with caution evidence of admissions of a defendant. The court erred in failing to give the instruction as the statement was used to prove a part of the prosecution's case. The error was harmless where the statement was consistent with the defense and where the jury was otherwise properly instructed.id: 13268
Court should have given cautionary accomplice instruction where the witness was the person appellant was charged with conspiring.Witness was obviously an accomplice to the conspiracy as he was the person appellant was charged with conspiring. Consequently, the court erred in failing to give accomplice instructions sua sponte. However, the failure to so instruct was harmless given the corroborating evidence which connected appellant to the crime in such a way as to satisfy the jury that the accomplice was truthful.id: 13275
Trial court erred in failing to instruct on the need to find corroborating evidence in order to rely on a witness' extrajudicial identification.Defendant argued the trial court erred in failing to instruct sua sponte on the need to find corroborating evidence in order to rely on a witness' out-of-court identification. However, in denying defendant's motion for acquittal the trial court mentioned several corroborating facts including the witness' subsequent sighting of the same man he had seen at the burglarized truck entering a car matching the description of defendant's in the motel parking lot. The error was therefore harmless.id: 13291
Following evidence that defendant told the victim he wanted to rape her, the court should have instructed to view a defendant's oral admissions with caution.A witness testified the capital defendant told the victim, I want to rape you. The trial court erred in failing to instruct the jury that evidence of defendant's oral admissions should be viewed with caution. The error was harmless where it was not reasonably probable the jury would have reached a different result if properly instructed. The statement was simple and there was no evidence it was fabricated or inaccurate. Moreover, the court fully instructed the jurors on witness credibility.id: 13281
Court should have instructed the jury to view condefendant's testimony with care and caution to the extent that it tended to incriminate defendant.The trial court erred in refusing defendant's request to instruct the jury to view codefendant's testimony with care and caution to the extent that it incriminated defendant. The error was harmless where the jury was aware the codefendants had every motivation to shift blame to each other.id: 16097
The court erred in failing to instruct the jury to determine whether the witness was an accomplice whose testimony should be viewed with caution where the witness participated in the drunk driving but may have been asleep during the fatal accident.At the start of the trip to Los Angeles, two intoxicated people were driving the car - Vessells handled the steering wheel while defendant operated the pedals. At some later point, Vessells fell asleep. Because the evidence was ambiguous as to whether he fell asleep before or after the accident, he was not an accomplice as a matter of law as a coperpetrator of the gross vehicular manslaughter. That he admitted to drunk driving did not matter. Therefore, the court did not err in failing to instruct the jury as a matter of law that he was an accomplice. However, the record showed he may have been an accomplice and the court erred in failing to instruct the jury to determine the issue. The failure to so instruct was harmless since the jury could have disregarded Vessell's testimony and still convicted defendant.id: 16950
Accomplice instruction should have been given even where the evidence did not show the witness was an accomplice as a matter of law.The evidence was insufficient to show the witness was an accomplice as a matter of law or that he helped kill the victim. It was enough, however, to conclude by a preponderance of the evidence that he was an accomplice. The court therefore erred in failing to instruct the jury that corroboration was required and to view the testimony with distrust.id: 17374
Trial court erred by failing to instruct the jury to view adoptive admissions with caution where defendant, after being informed of the accusations asked "where is the evidence."The officer's statement that two girls had accused defendant of molest, and his reply "where is the evidence?", were admitted under Evidence Code section 1221 on the theory that defendant's response could be interpreted as an adoptive admission of guilt as an evasive failure to deny the accusation. The court erred in failing to instruct sua sponte, with CALJIC 2.71.5 and 2.71. However, there was no dispute as to whether defendant made the statement or what he said. The failure to instruct the jury to view the adoptive admissions with caution was harmless.id: 17167
In a felony child abuse case, the trial court erred in failing to instruct the mother (defendant's girlfriend) was an accomplice as she was negligent in leaving the baby with defendant.Defendant was convicted of child endangerment along with a finding that he inflicted great bodily injury. The trial court erred by ruling that the mother was not an accomplice because she did not have the specific intent necessary to be an aider and abettor. For instructional purposes an "accomplice" includes a coperpetrator as well as an aider and abettor. There was substantial evidence that the mother, through criminal negligence by leaving the baby with defendant, was a coperpetrator of the crime. In fact, she had already pled guilty to felony child endangerment. Thus, the trial court should have given accomplice instructions. However, any error was harmless because the mother's testimony was adequately corroborated.id: 18099
Court erred in giving a Flannel instruction regarding the chief prosecution witness specifically stating the unreasonable belief of duress at the time she lied to police negated the specific intent required to become an accomplice.Appellant was convicted of being an accessory after the fact pursuant to Penal Code section 32. The defense argued the chief prosecution witness was an accomplice as a matter of law. The trial court erred in instructing the jury that the witness could be exonerated from responsibility as an accomplice with an honest but unreasonable belief that her actions were required because specific intent is not negated by an honest but unreasonable belief. The error was prejudicial where the only evidence supporting appellant's conviction was the testimony of that witness and her status as an accomplice was crucial to the defense.id: 13166
The court erred during the sanity phase by failing to give a limiting instruction after the prosecution's expert testified that defendant said he could tell right from wrong. During the sanity phase trial, the prosecution's mental health expert testified defendant told him that he knew the difference between right and wrong. The trial court erred by failing to instruct the jurors it could consider the statements only to show the basis of the expert's opinion, and not for their truth. However, the error was harmless where the evidence of insanity was weak, and the possibility the jurors considered the statements for their truth was remote.id: 18977
Updated 2/26/2024Witness’s erratic comments supported the instruction regarding the evaluation of a witness with a mental or communication impairment. The evidence was sufficient to warrant the court’s instruction with CALCRIM No. 331 regarding the evaluation of a witness with a mental or communication impairment. The witness’s statements in court were erratic, and both the court and prosecutor commented on her mental health problems.id: 27253
The trial court did not err in failing to instruct the jury that the immunized witness, Cabral, was an accomplice where the evidence showed he was drunk and passed out in the back seat at the time of the shooting. The trial court did not err by failing to instruct the jury that the immunized witness, Cabral, was an accomplice where the evidence showed he was drunk and passed out in the back seat at the time of the shooting.id: 24730
The trial court did not err by refusing to instruct that a drug addict’s testimony must be viewed with caution. The trial court did not err by refusing to instruct that the testimony of a drug addict must be viewed with greater care than the other witnesses, The proposed instruction was argumentative, and implied the witnesses had not only used drugs but were addicts. id: 26201
Accomplice testimony admitted under the declaration against interest hearsay exception does not require corroboration. The trial court did not err by failing to instruct the jury on the need for corroboration of accomplice testimony with respect to any out-of-court statements admitted against them under the declaration against interest hearsay exception.id: 25447
The codefendant’s statements were properly admitted under the statement against penal interest hearsay exception even though they placed more blame on defendant than on the declarant.The codefendant made statements to acquaintances that inculpated both the codefendant and defendant. Admission of the statements didn’t violate the confrontation clause because they were not testimonial. Moreover, the statements were properly admitted under the statement against penal interest hearsay exception (Evidence Code section 1230) even though they tended to place more responsibility on the defendant than on the codefendant declarant.id: 25280
There is no corroboration requirement with respect to exculpatory accomplice testimony.The trial court erred by instructing the jury that any testimony from an accomplice requires corroborating evidence before the jury may accept it as true. The actual rule is that a jury may not convict a defendant of an offense based on accomplice testimony without corroborating evidence. There is no corroboration requirement with respect to exculpatory accomplice testimony.id: 25281
Doctor’s assistant was not an accomplice where there was no evidence that she knew the surgery was performed in a grossly negligent manner. Defendant was a doctor who performed cosmetic surgery in his office. He was convicted of involuntary manslaughter after a patient died during a liposuction procedure. Evans, his office assistant who helped with some procedures, testified against him He argued she was an accomplice and the court erred in failing to instruct the jury on the need for corroboration. However, Evans was not an accomplice absent evidence that she knew the surgery was performed in a grossly negligent manner. And any instructional error was harmless given the corroboration of Evan’s testimony from defendant who acknowledged that he made all decisions about which drugs to give the victim.id: 24688
The witness was not an accomplice as a matter of law even though he asserted the 5th Amendment privilege and was granted use immunity. The trial court instructed the jury to determine whether Kalac was an accomplice, but defendants argued the court should have instructed the jurors that Kalac was an accomplice as a matter of law, and that his testimony had to be corroborated. However, the witness was not an accomplice as a matter of law where there was no direct evidence that he acted with the requisite knowledge and intent. The fact that he asserted the 5th Amendment privilege and was given use immunity was not dispositive. id: 24617
Trial court had no sua sponte duty to instruct on the limited purpose of expert testimony on CSAAS.Defendant was convicted of continuous sexual abuse of a child under 14 based in part on expert testimony on Child Abuse Accommodation Syndrome. Contrary to defendant’s claim, the trial court had no sua sponte duty to give the pattern instructions (CALCRIM No. 1193) explaining the limited purpose of expert testimony on the CSAAS.id: 24474
The trial court erred by refusing to instruct that if the witness aided and abetted the robbery he would be liable for murder.The trial court found there was evidence that would support the witness’s status as an accomplice to the robbery, but refused to instruct on the witness’s potential liability for aiding and abetting a felony-murder. The court erred by failing to instruct on aiding and abetting liability in connection with the murders but the error was harmless where there was ample corroboration of the witness’s testimony and defendant could not have been prejudiced by the omission. id: 21662
CALCRIM instructions don’t give the mistaken impression that an accomplice’s testimony can be corroborated by his or her prior out-of-court statements.CALCRIM’S Nos. 318 and 335 when read together do not instruct a jury that an accomplice’s testimony at trial may be corroborated by the same accomplice’s out-of-court statements. id: 21296
The instructions given did not allow the jurors to find the accomplice’s testimony was corroborated by his own pretrial statements.Defendants argued the instructions given allowed the jurors to consider an accomplice’s own pretrial statements to be independent evidence the jury could use as corroboration. However, the jurors were told of the need for independent corroboration, which prevented them from allowing the accomplice to corroborate his own testimony. And the witness’s testimony was corroborated by other evidence.id: 23962
An accomplice and an in-custody informant may corroborate each other. Penal Code sections 1111 and 1111.5 require corroboration for the testimony of an accomplice and an in-custody informant. However, an accomplice and an in-custody informant can corroborate each other for purposes of these provisions.id: 24033
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
By limiting the cautionary instruction to in-custody informant witnesses, the court did not improperly enhance the credibility of in-custody percipient witnesses.Defendant argued the trial court, by limiting the cautionary instruction (CALJIC 3.20) to in-custody informant witnesses, improperly enhanced the testimony of the in-custody percipient witnesses. However, when enacting Penal Code section 1127a (the basis of the instruction) the legislature intentionally distinguished between in-custody percipient witnesses and in-custody informant witnesses. The trial court properly declined defendant’s request to erase the distinctions.id: 22299
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
The prostitutes who testified at defendant’s pimping and pandering trial were not accomplices whose testimony need to be corroborated. Defendant was convicted of pimping and pandering based largely on the testimony of two prostitutes. He argued the women were accomplices and as such their testimony needed to be corroborated. However, they were not accomplices: they were exploited women who told similar stories of how defendant recruited them into prostitution. In any event, their testimony was corroborated by other witnesses.id: 21284
The fellow gang members not actively involved in this case were not accomplices for purposes of the Penal Code section 1111 instructions. Defendant argued the trial court erred by failing to instruct sua sponte that the accomplices testimony should be viewed with
caution. The witnesses defendant referred to were fellow gang members who may have engaged in other crimes with defendant or other members of the gang but the evidence did not show they
were liable to prosecution for this offense. So the court had no duty to instruct the jurors to view their testimony with caution.id: 19562
The trial court did not err in failing to give a limiting instruction as to the victim’s fresh complaint.Defendant argued the trial court erred in failing to give a limiting instruction as to the victim’s fresh complaint. However, the court had no duty to give such an instruction absent a request from the defense. Moreover, any error in failing to give the instruction was harmless where the victim testified at trial and the jury did not have to rely on her statements to other people, but was able to hear her directly and judge her credibility.id: 20458
The court did not err by not giving the CALJIC 3.02 instruction concerning liability for natural and probable consequences for purposes of determining whether a witness was an accomplice.Defendant argued for the first time on appeal, that the trial court should have instructed on its own initiative on the target offense of simple assault as a predicate for a finding that a prosecution witness was an accomplice on a natural and probable consequences aiding and abetting theory. Since the witness could have been viewed as an accomplice under that theory, defendant claimed there was a sua sponte duty to instruct under CALJIC 3.02 and the elements of the target offense of simple assault. However, the sua sponte duty to instruct on target offenses only arises where the prosecution relied on the natural and probable consequences theory. If the prosecutor failed to identify a target crime, then no instruction may be given under CALJIC 3.02 on a natural and probable consequences aiding and abetting theory. This statement which applies to instructions on the liability of a charged offense also applies to instructions which related to possible aiding and abetting liability and cautionary accomplice testimony instructions.id: 16924
Court's omission of phrase in CALJIC No. 3.40 and failure to give CALJIC No. 3.41 regarding proximate cause was not error in dog killing case.Following a minor traffic accident, the defendant reached into the other driver's car, grabbed her dog and threw it into a busy roadway. After reaching the safety of the other side of the roadway, the dog panicked and ran back into traffic attempting to reach it's owner; it was fatally struck by a car. Defendant was convicted of felony cruelty to an animal and sentenced to prison for the aggravated term of three years. Defendant argued that the trial court committed prejudicial error by failing to insert the term "death of animal" in place of "result of the crime," and by failing to render CALJIC No. 3.40 as to causation. The court rejected both arguments finding that defendant failed to request this specific wording in CALJIC 3.41 and failed to request that CALJIC 3.40 be given. Both arguments were waived and any error was harmless.id: 17454
Uncorroborated testimony of an accomplice was sufficient to support a juvenile wardship adjudication.The sole evidence implicating the minor in the juvenile court proceedings was the uncorroborated testimony of an accomplice. The juvenile court denied the defense request to dismiss the petition for insufficient evidence based on In re Mitchell P. (1978) 22 Cal.3d 946, which held Penal Code section 1111 requiring corroboration for accomplice testimony, does not apply to juvenile court proceedings. The appellate court was bound by the holding in Mitchell P., and denied the minor's claim of insufficient evidence. However, the court suggested that due to the changes in juvenile law, it may be time to reassess the rule in Mitchell P.id: 19960
The trial court had no sua sponte obligation to instruct the jurors to distrust the accomplice who happened to be the codefendant testifying in his own behalf. At the time of trial, CALJIC No. 3.18 suggesting an accomplice's testimony should be viewed with distrust, was not to be given sua sponte if the alleged accomplice was called as a defense witness. Here, Vieyra was a codefendant who testified in his own defense, thus making him a defense witness not subject to the sua sponte instruction.id: 19751
In shaken baby prosecution, the court did not err in failing to instruct that defendant's wife was an accomplice.Defendant was convicted of assault on his son resulting in death under Penal Code section 273ab. He argued the court erred by failing to instruct that his wife was an accomplice. However, except for a general conclusion by a psychologist that Tricia had some predisposition to abuse her children, there was no evidence she harmed anyone and no basis for finding she was an accomplice. Any error in failing to give the instruction was harmless where there was nothing in her testimony about which the jury needed to be distrustful.id: 17989
Trial court has no duty to give the CALJIC No. 2.71 cautionary instruction where the defendant's words constitute the crime itself.Defendant was convicted of making a criminal threat under Penal Code section 422 although he was later determined to be not guilty by reason of insanity. He appealed his commitment order claiming the trial court erred by failing to instruct the jury pursuant to CALJIC No. 2.71 that the statement constituting the threat should be viewed with caution. However, the cautionary instruction is not to be given where the defendant's words constitute the crime.
id: 17889
Failure to instruct the jury to view a defendant's oral admission with caution was harmless in light of other cautionary instructions.Defendant argued the trial court erred in failing to instruct with CALJIC Nos. 2.71 or 2.71.7, which would have informed the jury that oral admissions of a defendant are to be viewed with caution. Some instruction to that effect should have been given. However, any error was harmless where the jury was also told that when evaluating the conflicting testimony from witnesses the jury had the opportunity to observe they should remember that while testimony from any one of them could prove a fact, they should carefully review all evidence upon which the proof of a fact depends.
id: 17760
The trial court did not err in failing to instruct that one accomplice cannot corroborate the testimony of another.Defendant argued the trial court erred in failing to submit to the jury the question of the potential accomplice liability of a key prosecution witness, or instruct that one accomplice cannot be used to corroborate the testimony of another accomplice. However, there was no evidence to support Hart's involvement in the offenses charged against defendant. Even if there was some issue that might qualify Hart as an aider and abettor, there was sufficient corroborating evidence connecting defendant to the crime independent of Hart's testimony. Moreover, counsel was not ineffective by failing to request the instructions on potential accomplice liability.id: 17602
No accomplice instruction was necessary where the witness's statements were against his penal interest, and therefore sufficiently trustworthy.The trial court did not err in failing to instruct that Fields was an accomplice as a matter of law. Since Fields' statements were made under conditions sufficiently trustworthy to permit their admissions into evidence despite the hearsay rule - they were declarations against his penal interest - no corroboration was required and no instructions were necessary.id: 17515
A properly modified version of CALJIC No. 2.15 may be given as a cautionary instruction regarding special circumstance allegations of robbery or burglary.The defendant was charged with murder, robbery and burglary, with the last two crimes also alleged as special circumstances. She argued that the giving of a modified version of CALJIC No. 2.15 as to the special circumstance allegations was error. The court rejected this assertion, holding that such instruction did not mislead the jury as to the prosecution's burden of proof.id: 17450
A trial court may omit paragraph 2 of CALJIC No. 8.81.17 if there is no evidence that the special circumstance allegation was "merely incidental" to the murder.The defendant was charged with murder, robbery and burglary, with the last two crimes also alleged as special circumstances. She argued that the court erred in omitting paragraph 2 of CALJIC No. 8.81.17, the felony-murder special circumstance instruction. However, here the theft was not incidental to the killing, it was the primary motivation behind the murder.id: 17451
Court had no sua sponte duty to instruct that the jurors not consider the priors, to which defendant stipulated, to show his criminal propensity.During trial, defendant and his codefendant stipulated that they had prior felony convictions for the purpose of establishing their ex-felon status as an element of the felon-in-possession charges. Contrary to defendant's claim, the court had no sua sponte duty to give a limiting instruction to ensure the jury did not consider his prior felony convictions as showing that he had a propensity to commit crimes.id: 17457
Court had no sua sponte duty to instruct on the issue of late-joining accomplices.The trial court had no sua sponte duty to instruct the jurors on the issue of whether two witnesses were late-joining accomplices - that is accomplices to the later robbery (helping the perpetrators before they reached a place of safety) but not the earlier murder. While the defense could have tendered instructions on the issue, the failure to do so was harmless where there was little doubt the jurors viewed the witnesses' testimony with caution.id: 17401
It is not error to give CALJIC 2.11.5 where an unjoined coperpetrator testifies at trial as long as the jury understands the witness' criminal activity may be considered in assessing his credibility.CALJIC 2.11.5 basically instructs juries not to speculate on the reasons why a coperpetrator may not have been prosecuted in the instant case. Defendant argued the court erred by giving the instruction in a case where the unjoined perpetrator of the same crime testified for the defense. However, there is no error in giving the instruction as long as a reasonable juror, considering all of the instructions, would understand that evidence of criminal activity by a witness not being prosecuted in the current trial should be considered in assessing the witness credibility. id: 17154
Evidence that defendants were in possession of jewelry stolen during the robbery was sufficient to corroborate the accomplice's testimony.An accomplice, the getaway driver, testified that the defendants committed a robbery. To corroborate the testimony, the prosecution presented independent evidence that the defendants were in possession of the victim's jewelry after the robbery. This evidence was legally sufficient to corroborate the testimony of the accomplice.id: 17137
Instruction to view defendant's statements with caution should not be given where the statements are tape recorded and played for the jury.The court instructed the guilt and penalty phase juries to view defendant's extrajudicial statements with caution. The instruction should not be given where, as here, the statement was tape recorded and played for the jury. Defendant claimed prejudice since the jury could have viewed with caution the exculpatory portions of his statements. However, to the extent a statement is exculpatory is not an admission and the instruction did not apply.id: 16810
Attempted murder victim who conspired to buy cocaine from defendant was an accomplice for purposes of Penal Code section 1111.Three victims agreed to purchase cocaine from the defendant who later shot and killed two of the three. The third victim testified against defendant. Defendant argued the victim was an accomplice and the jury should have been instructed with CALJIC 3.18. While he would have been an accomplice if defendant was charged with the cocaine transaction, he was not an accomplice in his own attempted murder, the robbery of himself or the murder of his companions. Contrary to defendant's claim that the victim was liable for the murders under the provocative act theory, the evidence did not support that charge.id: 16811
Court was not required to modify the accomplice instructions absent a request by defendant.Defendant argued the trial court erred by failing to modify the accomplice instructions, sua sponte, to make clear that the corroboration rule applies to in-court testimony and out-of-court statements, and to add the word "statement" to the instruction defining corroboration. While both principles were valid, the court was not required to modify the instruction absent a request by the defendant.id: 16646
Court had no sua sponte duty to modify accomplice instruction to indicate only testimony unfavorable to defendant should be viewed with caution.Three accomplices testified for the prosecution at trial. In the absence of any objection, the trial court had no duty to modify the standard instruction to view accomplice testimony with caution, to suggest the instruction does not apply to evidence favorable to the defendant. However, to lessen the burden on the trial court, the instruction should be modified in future cases to indicate that only testimony unfavorable to the defendant should be viewed with caution.id: 16096
Instructing on defendant's burden of proving accomplice status by a preponderance of the evidence does not violate due process.Defendant challenged the instruction which states the defense has the burden of proving by a preponderance of the evidence that a witness was an accomplice. (CALJIC No. 3.19.) He argued Penal Code section 1111 makes it an element of every crime that the evidence comes from a source other than an accomplice, or that accomplice testimony be corroborated. However, section 1111 does not constitute an element of the offense and the instruction does not violate due process principles.id: 16098
The court did not err in failing to instruct the witness was an accomplice as a matter of law where the evidence of accomplice status was strong but did not compel that conclusion.The trial court instructed the jurors that Weller was an accomplice as a matter of law. The court refused the same instruction regarding Garcia and instructed the jury to determine whether she was an accomplice. There was strong circumstantial evidence that Garcia was an accomplice in the murders. However, the evidence did not compel this conclusion. The court's instruction was correct since accomplice status is a jury question unless there can be no reasonable dispute as to the facts or inferences to be drawn therefrom.id: 16099
A child who has a consensual sexual relationship with a parent is a victim and cannot be considered an accomplice to the parent's crime.A child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator of the incest, and this conclusion applies even when the child consents to the sex. Therefore, a child in this situation can never be an accomplice, and accomplice instructions are not appropriate.id: 14843
Court is under no sua sponte duty to instruct the jury to view a five year-old witness' testimony with caution.Defendant argued the court erred in failing to instruct the jury on its own motion that the five year-old witness' testimony should be viewed with caution. However, the court is under no duty to give such a cautionary instruction sua sponte.id: 13274
Court was not required to instruct that the testimony of a witness to whom defendant confessed required independent corroboration in light of her testimony that her pretrial statements were fabricated.Defendant argued the court erred by failing to instruct sua sponte that the testimony of a witness to whom he confessed required independent corroboration, in light of the witness' testimony that her pretrial statements to the police were fabricated. The People established the corpus delicti independently of any admissions defendant made to the witness. Moreover, the court instructed on credibility as it relates to prior inconsistent statements and that a defendant's out-of-court admissions should be viewed with caution. The court was not required to instruct sua sponte that the witness' statements to the police detailing the events of the day of the shooting had to be corroborated by independent evidence.id: 13276
Defendant was not entitled to an instruction that the testimony of a witness he called must be corroborated.Defendant called a coperpetrator during the penalty phase to raise doubts about defendant's role during the shootings. However, the testimony did defendant considerable damage. Defendant then asked the court for an instruction that the witness was an accomplice as a matter of law whose testimony must be corroborated. However, a defendant cannot maintain that he was entitled to an instruction that the testimony of a witness he called must be corroborated.id: 13277
Error in failing to give CALJIC 2.72 regarding admissions was harmless where evidence establishing corpus delicti was overwhelming.The trial court erred in refusing to give defendant's requested instruction CALJIC 2.72, which requires that evidence of corpus delicti be proved independent of a defendant's admissions. However, the error was harmless in light of the overwhelming independent evidence establishing corpus delicti.id: 13278
Extrajudicial statements by a non-witness accomplice is not testimony and accomplice instructions are not required.Appellant argued the trial court erred in failing to give accomplice instructions concerning the extrajudicial statements of Daniels. However, Daniels did not testify and thus there was no testimony of an accomplice. Although accomplice testimony has been extended to include prior inconsistent statements of an accomplice-witness, an extrajudicial statement by a <U>non</U>-witness is <U>not</U> testimony. Moreover, when an accomplice gives testimony favoring a defendant, such as in the present case, it is error to give accomplice instructions unless requested by the defendant.id: 13279
Failure to instruct that the testimony of immunized witness must be viewed with greater care and caution was not erroneous.Defendant argued the trial court erred in refusing to give the requested cautionary instructions on the testimony of immunized witnesses. However, the general instruction on witness credibility coupled with the modified instruction specifically directing the jury to determine whether the immunized witness credibility has been affected by the grant of immunity, adequately informed the jury of the necessity to weigh the motives of the immunized witness.id: 13280
Instructing the jury to view the extrajudicial confession with caution was harmless where neither party argued the confession should be disbelieved.Appellant argued it was federal constitutional error to inform the jury it should view an extrajudicial confession with caution. He had confessed at the time of his arrest to possession of the narcotics and argued at trial that the confession was truthful but that he did not possess the drugs for sale. Since neither party argued the extrajudicial confession should be disbelieved, the instruction could not have harmed appellant.id: 13282
Instructing with CALJIC 2.21.1 where the prosecution witnesses provide crucial but suspect testimony does not violate due process or undermine the reasonable doubt standard.The trial court instructed with CALJIC 2.21.1 that a witness who is willfully false in one part of his or her testimony, is to be distrusted in others. Defendant argued that when the instruction is applied to prosecution witnesses it lowers the People's burden of proof by permitting jurors to convict a defendant on the basis of pivotal-but-dubious testimony which, when viewed in light of the other evidence, is probably truthful. However, no reasonable juror would interpret CALJIC 2.21.1 to permit a criminal conviction where the evidence showed the prosecution's evidence was probably truthful, hence the defendant was probably guilty yet not guilty beyond a reasonable doubt.id: 13283
Instruction that accomplice-defendant's testimony should be viewed with distrust to the extent it tends to incriminate his codefendant was proper.Defendant and his codefendant stood trial for capital murder. He argued the court erred in instructing the testimony of an accomplice-defendant that tends to incriminate his codefendant should be viewed with distrust. The instruction was proper.id: 13284
Instruction to disregard the nonprosecution of other perpetrators still allowed a grant of immunity to be considered in assessing the credibility of a prosecution witness.Defendant argued that the instruction to disregard the nonprosecution of other perpetrators (CALJIC 2.11.5) erroneously told the jurors they could not discuss or consider the fact that prosecution witnesses had been granted immunity from prosecution for any of the charges against defendant. However, when the instruction is given with the full panoply of witness credibility and accomplice instructions, as it was in this case, a reasonable juror will understand that although separate prosecution or nonprosecution of coparticipants, and the reasons therefor, may not be considered on the issue of the charged defendant's guilt, a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of a prosecution witness.id: 13285
No accomplice instruction was required where witness was called by the defense and testified favorably to the defense.Because defendant denied participation in the burglaries and Doldo testified in his behalf consistent with that defense, the use of the general accomplice instructions could have raised an inference that all of his testimony was suspect. The trial court did not err in failing to instruct <i>sua sponte</i> that Doldo's prior inconsistent statements required corroboration.id: 13286
Potentially confusing instructions concerning corroboration of accomplice testimony were clarified by other instructions.The trial court gave CALJIC 2.27 (testimony of a single witness is sufficient for the proof of any fact) and CALJIC 3.11 (accomplice testimony must be corroborated in order to convict). Defendant argued the instructions were contradictory and in combination confused the jury, permitting the defendant to be convicted on the basis of the witness' uncorroborated testimony alone. However, the trial court also delivered the full array of accomplice instructions. Moreover, counsel for both sides proceeded throughout the trial on the assumption that the witness was an accomplice whose testimony required corroboration.id: 13287
Single-witness instruction may apply to the uncorroborated testimony of the accused.Defendant argued that the uncorroborated testimony of a defense witness should never be subject to the single-witness cautionary instruction (CALJIC 2.27), since the state must prove every element of the offense charged, and the defense has no burden of proof of facts to which the admonition might apply. However, when the accused offers his uncorroborated testimony as evidence raising a reasonable doubt as to his guilt, the jury should weigh such evidence with the same caution it accords similarly uncorroborated testimony by a prosecution witness.id: 13288
The fact that the People's witness drove the victim to the murder scene did to make her an accomplice.Appellant argued the court had a sua sponte duty to instruct the jury to decide whether the People's witness was an accomplice to the murder. However, the fact that she was at the scene or drove the victim there did not make her an accomplice. The evidence did not support an inference of accomplice lability.id: 13290
Trial court had no sua sponte duty to modify the cautionary accomplice instruction.Because the prosecution and defense each called accomplices to testify the trial court instructed with CALJIC 3.18 that accomplice testimony may be viewed with distrust. Defendant, who did not object to the trial court's giving CALJIC 3.18 argued the court had a sua sponte duty to modify the instruction to state that The testimony of an accomplice <i>which tends to incriminate the defendant</i> ought to be viewed with distrust. However, it was incumbent upon defendant to object to the cautionary instruction in the trial court in order to claim error on appeal.id: 13292
Trial court need not instruct the jury to view an accessory's testimony with caution.Witness was originally charged as an accessory for aiding in defendant's escape after the murders. Defendant argued that as an accessory, the court should have permitted the jury to find the witness an accomplice and should have instructed that testimony by an accomplice must be corroborated and viewed with caution. However, to be considered an accomplice, it must be demonstrated that the accessory acted with the same guilty knowledge and intent regarding the commission of the crime. As a mere accessory, defendant was not entitled to a cautionary instruction on the witness' testimony.id: 13293
Witness was not an accomplice as a matter of law where he had knowledge defendant might commit a crime in the future.Defendant argued the court erred in finding the prosecution witness was not an accomplice as a matter of law and refusing to instruct on accomplice testimony. The witness, defendant and others had been ingesting large quantities of cocaine the day before the murder and since the supply was low defendant spoke of robbing his cocaine supplier. The prosecution witness drove defendant to the dealer's house but the plan was aborted. The following day the plan was accomplished without the witness' help as his girlfriend prevented his participation. The witness' knowledge that a crime might be committed by defendant in the future did not amount to aiding and abetting the commission of that prospective crime. The witness was therefore not an accomplice as a matter of law.id: 13294
Applying the false-in-part instruction to the defendant's testimony did not lighten the prosecution's burden.Defendant argued the false-in-part instruction (CALJIC 2.21.1) improperly singled out his testimony alone for suspicion, and thus lessened the prosecution's burden, because the circumstantial evidence presented by the prosecution's witnesses was not disputed. However, applying neutral standards of credibility to defense witnesses does not improperly lessen the prosecution's burden.id: 13256
Applying the false-in-part instruction to the defendants' testimony did not lighten the prosecution's burden.Defendant argued the false-in-part instruction (CALJIC2.21.1) improperly singled out his testimony alone for suspicion, and thus lessened the prosecution's burden, because the circumstantial evidence presented by the prosecution's witnesses was not disputed. However, applying neutral standards of credibility to defense witnesses does not improperly lessen the prosecution's burden.id: 13257
CALJIC 2.03 expressly admonishes that false statements about charged crimes alone are not sufficient to prove guilt.Defendant argued the jury may misunderstand CALJIC 2.03 to permit an inference that false statements about one crime reflect consciousness of guilt not only of other crimes the defendant has committed, but also of other crimes that are charged. However, CALJIC 2.03 expressly admonishes the jury that false statements about charged crimes alone are not sufficient to prove guilt.id: 13258
CALJIC 2.11.5 did not create the impression the jury should not consider appellant's defense.The court instructed the jury pursuant to CALJIC 2.11.5 not to consider why another person involved in the crime is not being prosecuted or whether such person will later be prosecuted. Appellant argued the instruction directed the jury to believe that even if he was not the person with the rifle or if they believed someone else shot the victim inside the house, they were still to convict appellant. However, the instruction did not impinge upon any of appellant's defenses. It merely directed the jury not to be distracted from its task of determining appellant's guilt or innocence.id: 13259
CALJIC Nos. 2.27 and 10.60 did not improperly enhance the victim's testimony.The trial court instructed with CALJIC 2.27 (testimony of a single witness is sufficient) with all references to corroboration omitted and CALJIC 10.60 (no corroboration of sexual assault victim's testimony is required). These instructions did not improperly enhance the victim's testimony by allowing the jury to consider it without corroboration while inferring corroboration of the testimony of other witnesses was required.id: 13260
Cautionary accomplice instructions were not required where there was no evidence connecting the witnesses to the murder.The trial court did not err in failing to read cautionary accomplice instructions where the witnesses were not seen at the murder, nor was there any evidence they either acted with the intent or purpose of encouraging or facilitating the murder. The only evidence defendant argued connected one witness to the murder was his own testimony, such that the usual reasons for disturbing accomplice testimony were not present.id: 13261
Corpus delicti rule does not apply to a statement that is part of the crime itself.Evidence was presented that defendant told the victim he wanted to rape her. Defendant argued the trial court erred in failing to instruct that the corpus delicti of a crime must be proven independently of a defendant's admission or confession. However, the corpus delicti rule has been extended to pre-offense statements of later intent as well as to post-offense admissions and confessions, but not to a statement that is part of the crime itself. The court properly refused to give the corpus delicti instruction.id: 13262
Court did not err in failing to reinstruct penalty phase jury to view accomplice testimony with distrust.At the guilt phase, the People presented the testimony of a man later determined an accomplice as a matter of law. The guilt phase jury was instructed to view his testimony with distrust. At the penalty phase, the People did not recall the witness, but relied on the testimony he had earlier given. The court did not err in failing to reinstruct the penalty phase jury to view his testimony with distrust. The same obligation does not arise when the jury merely relies on previously given testimony covered by previously delivered instructions.id: 13263
Court did not err in failing to instruct the jury sua sponte to view with caution the testimony of a seven-year-old witness.The murder victim's seven-year-old son testified as a prosecution witness at trial. The trial court did not err in failing to instruct the jury on its own motion to view the testimony with caution. While a party may request such an instruction where the witness is under ten years of age, the court has no sua sponte duty to so instruct.id: 13264
Court did not err in instructing the jury to view defendant's admission with caution where the statements were partially exculpatory.Defendant was convicted of multiple counts of molesting his daughter. He admitted to his wife, the bishop and the police that he had molested his daughter, but his statements did not describe force or duress. The jury was instructed to view the defendant's oral admission with caution. He argued that instruction caused the jury to view with caution statements on which his defense relied. However, while the statements tended to prove his guilt of a sex crime, it also tended to prove his innocence of employing force or duress. To the extent a statement is exculpatory, it is not an admission to be viewed with caution. The instruction was not improper.id: 13265
Court had no sua sponte duty to caution the jury to ignore the apprehensive actions of the bailiff each time pro se defendant approached the witness.Defendant represented himself at the capital trial. He complained that the bailiff, a sheriff's deputy, and the witness' attorney would stand up as if expecting an attack each time he approached the witness on cross-examination. The court had no duty to caution the jury to ignore the conduct.id: 13270
Court had no sua sponte duty to give a limiting instruction regarding the use of evidence of appellant's gang membership.Evidence of gang membership was critical to prove both motive (retaliation for the death of a fellow gang member) and intent to kill (random killings based on hatred), and therefore was central to the case. However, absent a request from the defense, the court had no duty to give CALJIC 2.50 instructing the jury to only consider evidence of appellant's past gang membership for purposes of proving intent to kill or motive.id: 13271
Court has no sua sponte duty to instruct that the testimony of a jailhouse informant should be viewed with distrust.The trial court did not err by failing to instruct on its own motion that the testimony of a jailhouse informant should be viewed with distrust. Jailhouse informants have no inherent motive to lie and the standard instructions on credibility adequately guide the jury's assessment of a jailmate's testimony.id: 13272
Court is not required to instruct the jury to view immunized testimony with distrust.Defendant argued the trial court erred in refusing to instruct the jury to view the immunized testimony of a prosecution witness with distrust. However, there is no requirement to view immunized testimony with distrust. Moreover, the court amplified the standard instruction on witness credibility (CALJIC 2.20) to include language regarding a witness testifying under a grant of immunity.id: 13273
Coconspirator's statements to the undercover officer did not constitute testimony and no corroboration was necessary.Defendant argued the trial court erred in failing to instruct the jury sua sponte that extrajudicial statements made by the coconspirator must be corroborated. However, the coconspirators statements to the undercover officer made in the course of the methamphetamine sales were not suspect, unreliable, or untrustworthy. The statements did not constitute testimony within the meaning of Penal Code section 1111 and there was no need for corroboration. An instruction pursuant to CAJIC 3.11 was not required.id: 13098
Defendant's statements were not admission so cautionary instructions were unnecessary.Defendant argued the court erred in failing to instruct the penalty phase jury that admissions are to be viewed with caution. However, the statements 1) telling a prison guard Don't fuck with me and 2) Go for your gun and you're dead did not amount to an admission since the statements did not play a part in establishing defendant's guilt of the crimes in question.id: 13071
Instruction limiting the use of prior convictions for impeachment need only be given upon request.The trial court did not err in failing to instruct <i>sua sponte</i> that the use of a prior conviction for purposes of impeachment is admissible for that limited purpose. The instruction need be given only upon request.id: 12835
Failure to press the trial court for an admonition of the jury constituted a waiver of the issue of prosecutorial misconduct.A prosecutor's question regarding a fact not in evidence was improper. Defense counsel obtained the trial court's agreement that an admonition to the jury was called for, but then sat by as the trial court neglected to give the admonition. By failing to press the trial court for an admonition to the jury, defense counsel waived the issue of prosecutorial misconduct as effectively as though the issue had never been raised.id: 12444
Court did not err in refusing to deliver a special instruction cautioning the jury to examine with greater care the testimony of an informer.Defendant argued the court erred in refusing to give a special instruction which would have cautioned the jury to examine with greater care the testimony of an informer. The instruction was patterned upon the federal rule. However, the jury received adequate standard instructions on the credibility of witnesses and there was no error in refusing the special instruction.id: 11919
Court has no sua sponte duty to give eyewitness credibility instruction.CALJIC 2.92 governs the weight to be given eyewitness identification testimony. The trial court is under no duty to deliver the instruction absent a request from counsel.id: 11427
Mere accessories are not accomplices and cautionary instructions are not required.Defendant argued the court should have given accomplice instructions as to witness Horton, including an instruction that her testimony had to be corroborated and viewed with distrust. There was evidence Horton was an accessory to the crimes but not that she was an accomplice. Mere accessories are not accomplices and the cautionary instructions were not required.id: 9634
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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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