Brief Bank # B-711 (Re: F 12.44 n4 [Ex-Felon With Firearm: Due Process Requires Sua Sponte Instruction Regarding Stipulation Of Underlying Felony (PC 12021 & PC 12021.1)].)
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ARGUMENT
I.
THE TRIAL COURT’S FAILURE TO GIVE A LIMITING INSTRUCTION WITH RESPECT TO THE STIPULATED PRIOR-FELONY ELEMENT OF THE GUN POSSESSION COUNT VIOLATED APPELLANT’S DUE PROCESS RIGHTS.
As noted above, at the inception of trial the parties stipulated to appellant’s prior felony conviction for purposes the felon with firearm offense charged in Count 8. (CT 258.2; RT 92-93.) During the People’s presentation of evidence, the prosecutor read the stipulation (People’s Exh. 25) to the jury as follows: “Stipulation. Counsel for defendant John Doe and the District Attorney stipulate to the following facts: defendant, John Doe, has previously been convicted of felony within the meaning of Penal Code Section 12021.1.” (RT 575.)
The trial court explained that section 12021.1, charged Count 8, “is the section relating to the crime which is common known as possession of a firearm by a convicted felon.” (RT 574-575.) The court added that the jury “must assume that [t stipulated] fact has been conclusively proven” and that appellant was “agreeing that it was his status, that is, as a person who had previously been convicted of a felony, on February 19, 1995. The stipulation does not constitute any form of admission that he was in possession of a firearm on that date.” (RT 574-575.)
Thus, the jury knew that appellant’s status as a convict felon was a “conclusively proven” fact. But what the jury did not learn was that this damning fact was thoroughly irrelevant in considering appellant’s guilt of the robberies charged against the three defendants–or, for that matter, of his possession of a firearm in Count 8. On the contrary, given the state of the record and instructions, the jury could reasonably assume that the stipulation was indeed a proper consideration. The court’s failure to instruct the jury to the contrary was prejudicial error in violation of appellant’s due process rights under the federal and state constitutions; accordingly, reversal is required.
The Fourteenth Amendment to the United States Constitution prohibits a conviction from being based on “evidence which is utterly irrelevant or unduly prejudicial.” (People v. Valentine (1986) 42 Cal.3d 170, 180; Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6 (20 L.Ed.2d 476, 482, 88 S.Ct. 1620]; cf. Cal. Const., art. I, § 15.) On the other hand,
[w]here ex-felon status is an element of an offense, it is hardly irrelevant in a fundamental constitutional sense. And the United States Supreme Court has acknowledged that states may have “one-step” recidivist statutes which require proof to the guilt jury of priors bearing on punishment. Where proper limiting instructions are given, such schemes do not offend federal due process. [Citations.] A fortiori, states may make ex-felon status an element of an offense, and may allow proof of this element by “sanitized” stipulation with proper limiting instructions. (People v. Valentine, supra, 42 Cal.3d at 180, emphasis added, fn. omitted.)
In Valentine, the California Supreme Court relied on the United States Supreme Court’s decision in Spencer v. Texas (1967) 385 U.S. 554, 559-569 [17 L-Ed.2d 606, 611-617, 87 S.Ct. 648]. Spencer rejected the defendants’ argument that due process requires “a two-stage jury trial . . . whenever a State seeks to invoke an habitual-offender statute.” (Id, at 565-566 [17 L.Ed.2d at 614, 87 S.Ct. 648].) In such a system, jurors are unaware of the charged prior unless and until they reach a guilt verdict on the current offense. (Id. at 567 ( 17 L.Ed. 2d at 616, 87 S.Ct. 648].) Even if this approach might be the “fairest,” the Fourteenth Amendment does not mandate “the best, recidivist trial procedure . . . .” (bid.) The Texas one-step system passed constitutional muster, despite “the conceded possibility of prejudice[,]” because “[t]he defendants, interests are protected by limiting instructions [citation] and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. (Citations.]” (Id. at 561, emphasis added [17 L.Ed.2d at 612-613, 87 S.Ct. 648].)
In California, the trial judge must prevent the jury from hearing- the nature of an ex-felon prior as irrelevant and prejudicial. (People v. Valentine, supra, 42 Cal.3d at 181-182; compare People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1406 [only where defendant stipulates to prior].) But the “ ‘proof in open court’ provision of Proposition 8″ requires admission of evidence of a prior felony. People v. Valentine, supra, 42 Cal.3d-at-181; Cal. Const., art. I, § 28, subd. (f).) [P]articularly prejudicial” or not, the trial judge is not free to “limit or forbid” its admission. And although the defendant’s interest is theoretically “protected by limiting instructions,” as appeared to require (id. at 180), the trial court’s failure to give such an instruction here deprived appellant of the very protection which at least minimally satisfies due process. (Spencer v. Texas, supra, 385 U.S. at 561 [17 L.Ed.2d at 612, 87 S.Ct. 648]; Richardson v. Marsh (1987) 481 U.S. 200, 207 [95 L.Ed.2d 176, 185, 107 S.Ct. 1702] (“[I]n Spencer v. Texas [citation], we held that evidence of the defendant’s prior criminal convictions could be introduced for the purpose of sentence enhancement, so long as the jury was instructed it could not be used for purposes of determining guilt.”] (emphasis added); People v. Ratcliff, supra, 223 Cal.App.3d at 1407 [due process not violated despite jury learning nature of prior as ex-felon, element, where defendant did not stipulate to prior and “a proper limiting instruction was given”].) [Footnote 1]
While in the body of the opinion Valentine appeared to acknowledge the necessity for a limiting instruction (42 Cal.3d at 180), a subsequent footnote suggested that such an instruction was not required sua sponte: “Of course, where the fact of a prior conviction is admitted solely to establish ex-felon status as an element of violation of section 12021, the trial court, at defendant’s request, should give an instruction limiting the jury’s consideration of the prior to that single purpose.” (Id. at 182, fn. 7, emphasis added.) The Supreme Court did not elaborate upon this dicta. Had the court considered the question posed here, though, appellant submits that it would have been resolved in favor of a required instruction. [Footnote 2]
It must be emphasized that the question is not resolved by reference to Evidence Code section 355, which provides: “When evidence is admissible . . . for one purpose and is inadmissible . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Emphasis added; see, e.,g., People v. Kendrick (1989) 211 Cal.App.3d 1273, 1277-1278 [no sua sponte limiting instruction re prior conviction used for impeachment]; contra, People v. Lomeli (1993) 19 Cal.App.4th 649, 655-656 [instruction required, but error not constitutional]; People v. Collie (1981) 30 Cal.3d 43, 63-64 [in general, instruction not required where evidence of criminal conduct offered to show intent, motive, modus operandi]; cf. Biggerstaff v. Clark (7th Cir. 1993) 999 F.2d 1153, 1154-1155 [similar context, no federal constitutional requirement].) Evidence Code section 355 and the cited cases deal with the “admissibility” of “evidence”–not the situation presented here.
“‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140, emphasis added.) In appellant’s case and in the Valentine situation, the issue involves a stipulated fact, not evidence which may or may not succeed in proving a fact to the jury. “‘A stipulation, although it is not itself evidence, is the equivalent of, and may be relied on as, proof . . . . ‘ [Citations.]” (Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 452-453; cf. People v. Bonin (1989) 47 Cal.3d 808, 848-849 [where defense offers stipulation, “the facts covered” by it are “removed from dispute” and proof by evidence is improper].)
“‘Proof, is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code, § 190.) When evidence, even if uncontradicted, is admitted by the court, it is up to the jury whether to believe that it establishes a particular fact beyond a reasonable doubt. (People v. Figueroa (1986) 41 Cal.3d 714, 724; see, e.g., CALJIC No. 2.20 [jurors instructed that they are “the sole judges of the believability of a witness and the weight to be given the testimony of each witness”]; CALJIC No. 2.23 [limited impeachment purpose of “fact that a witness has been convicted of a felony, if such be a fact” (emphasis added)]; CALJIC No. 2.23.1 [same, re fact of misdemeanor, “if it is established,’]; CALJIC No. 2.50 [re limited purpose of other crimes evidence, “if believed”] “When a defendant stipulates to the existence of a fact in controversy, however, the jury is instructed that it must regard the fact as conclusively proved. (See CALJIC No. 1.02.)” (People v. Adams (1993) 6 Cal.4th 570, 580.)
In the context of limited admissibility of evidence, the reluctance of the Legislature and courts to mandate instruction in all cases is not unreasonable, as explained by the Supreme Court:
Evidence of past offenses may not improperly affect the jury’s deliberations if the facts are equivocal, the charged offense is dissimilar, or the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced.(Citations.] Neither precedent nor policy favors a rule that would saddle the trial court with the duty either to interrupt the testimony sua sponte to admonish the jury whenever a witness implicates the defendant in another offense, or to review the entire record at trial’s end in search of such testimony. There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsels inadvertence. But we hold that in this case, and in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie, supra, 30 Cal.3d at 64, fn. omitted.)
Where evidence is admitted, whether or not for a limited purpose, the jury is free to reject or place minimal weight on even prejudicial evidence in fulfilling its threshold – duty of determining the facts. In that sense, the danger of prejudice–or of unconstitutional conviction by irrelevant evidence–is theoretically reduced by various factors, as discussed in Collie. Even without a limiting instruction: (1) The defendant may use other evidence and/or argument to dispute the truth of the evidence. (2) The defendant may use other evidence and/or argument to minimize the significance of the evidence in connection with the fact it purports to establish. (3) The defendant may ignore the evidence, simply not draw attention to it.
But with a stipulation, the defense is placed in quite a different position: (1) There is no evidence which may be challenged for its truth. (2) The stipulation’s significance in establishing a fact is indisputable. (3) The trial court will certainly remind jurors of the stipulation–indeed, will instruct them to treat it as conclusively proved. In short, where the jury learns that it must accept a prejudicial fact as true in establishing an element of an offense–and the fact is irrelevant as a matter of law in every other context–the danger of an unfair conviction is maximized in the absence of a limiting instruction. In effect, the jury learns that it should consider the defendant’s felony status in determining his guilt of the charged offenses. The resulting impropriety is sufficiently obvious and dangerous as to require sua sponte instruction “to protect the defendant from his counsel’s inadvertence.” People v. Collie, supra, 30 Cal.3d at 64.)
The proceedings below demonstrate appellant’s point. In giving the standard instructions to a jury already informed that it “must assume that [the stipulated] fact [of appellant’s felony conviction] has been conclusively proven” (RT 574-575), the court began by directing the jury as follows:
You must base your decisions, and I use the word decisions in the plural, on the facts and the law. [Footnote 3] In that regard, you have two duties to perform. First, you must determine the facts from the evidence received in the trial and not from any other source. A fact is something directly or circumstantially proved by the evidence, or by a stipulation. A stipulation is an agreement between attorneys regarding the facts.
Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your verdicts. . . . (RT 924, emphasis added; CT 302; CALJIC No. 1.00.)
The court added, “[I]f the attorneys have stipulated or agreed to a fact, you must regard that fact as conclusively proved . . . .” (RT 925-926, emphasis added; CT 304; CALJIC No. 1.02.) And later, in giving the instruction defining the felon with firearm offense in Count 8, the court reminded the jury: “In, this case, the previous felony conviction has already been established by stipulation so that no further proof of that fact is required. You must accept as true the existence of this previous felony conviction.” (RT 941, emphasis added; CT 344; CALJIC NO. 12.44.)
Thus, the jury learned that (a) it must believe that appellant had been convicted of a felony; (b) this was a proved “fact” which must be considered in arriving at the “verdicts”–all of them; i.e., each count charged against appellant.
This common sense interpretation of the trial court’s charge to the jury is supported by other instructions given in this case. For example, the jury certainly became aware of the concept of limited use of evidence–albeit in certain contexts unrelated to consideration of the ex-felon stipulation in determining appellant’s guilt: [Footnote 4]
Evidence has been admitted against one or more of the defendants and not admitted against the others. At the time this evidence was admitted, you were admonished that it could not be considered by you against the other defendants. Do not consider such evidence against the other defendants. (RT 930, emphasis added; CT 313; CALJIC No. 2.07.)
Evidence has been received of a statement made by a defendant after his arrest. At the time the evidence of this statement was received by you, you were told it could not be considered by you against the other defendants. Do not consider the evidence of such statement against the other defendants. (RT 930, emphasis added; CT 314; CALJIC No. 2.08.)
The fact that a witness has been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of such a conviction does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness. (RT 933, emphasis added; CT 322; CALJIC No. 2.23.)
Thus, the jury well knew that consideration of a particular fact, including a felony conviction, could be circumscribed. It was logical to assume that if there were any limited use to be made of the stipulated felony conviction, the court would have instructed the jury accordingly. And indeed, the court suggested two specific limitations on the use of the stipulation–neither of which solved the problem noted in Valentine:
(1) The stipulated fact must be regarded as “conclusively proved as to the party or parties making the stipulation.” (RT 925-926, emphasis added.) In a multiple defendant trial, this limitation had obvious meaning for the jury: Because appellant stipulated to the conviction, it need not be deemed true in connection with Mr. B’s and Mr. M’s culpability.
(2) In its earlier direction regarding the stipulation, the court said, “The stipulation does not constitute any form of admission that [appellant] was in possession of a firearm on [the] date [of the charged offenses].” (RT 575.) Of course not–according to the wording of the stipulation itself. On the other hand, there was no indication to the jury that it could not consider appellant’s ex-felon status as relevant to the question of whether he was in possession of a firearm.
Nor was there any clue that the stipulated fact was irrelevant to consideration of the other counts. On the contrary, the court directed the jury to “[clonsider the instructions as a whole, each in light of all the others.” (RT 925; CT 303; CALJIC No. 1.01.)
One of those other instructions defined “inference” for the jury: “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.” (RT 927-928; CT 310; CALJIC No. 2.00.) Later, the court said, “(Y]ou must not draw any inference from the fact that a defendant does not testify.” (RT 934; CT 326; CALJIC No 2.60.) And early in instructions, the court warned: “You must not be influenced by pity for a defendant or by prejudice against him. You must not be biased against a defendant because he has been arrested for these offenses, charged with crimes or brought to trial. None of these circumstances is evidence of guilt. And you must not infer or assume from any or all of them that a defendant is more likely to be guilty than innocent.” (RT 925, emphasis added; CT 302; CALJIC No. 1.00.)
Unfortunately, the court gave no equivalent admonition with respect to the fact that appellant had been convicted of a felony. The jury was free to reach guilty verdicts in the robbery counts, for example, at least in part by considering the fact that appellant was a felon and inferring or concluding that he must have been the suspect who fled from the police. Indeed, the jury also learned that the fact of a felony conviction may properly support an entirely separate factual determination: “The fact that a witness has been convicted of a felony . . . may be considered by you only for the purpose of determining the believability of that witness. . . . . It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.” (RT 933.)
In sum, there is a “reasonable likelihood” that the court’s instructions were interpreted so as to mandate or at least permit consideration of appellant’s prior felony conviction in finding him guilty. (Estelle v. McGuire (1991) 502 US 62, 72 [116 L-Ed.2d 385, 399; 112 S.Ct. 475, 482]; People v. Clair (1992) 2 Cal.4th 629, 663.) Certainly, no restriction against such consideration came from the trial court, which went as far as directing the jury to consider the stipulation in reaching its “decisions” or “verdicts.” (See discussion at pp. 26-27, supra.) This was error, denying appellant due process and a fair trial under the United States Constitution, as discussed above.
As federal constitutional error, the instructional omission here must be evaluated according to the Chapman harmless-beyond-a reasonable-doubt standard. (Yates v. Evatt (1991) 500 U.S. 391, 400-402 (114 L.Ed.2d 432, 446-450, 111 S.Ct. 1184]; Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].) So evaluated, the error cannot be deemed harmless.
In the first place, there is an “almost invariable assumption of the law that jurors follow their instructions . . . .” (Richardson v. Marsh, supra, 481 U.S. at 206 [95 L.Ed.2d at 185, 107 S.Ct. 1702].) Had the judge properly instructed the jury to disregard the felony conviction for all purposes but establishing one element of the firearm charge in Count 8, a reviewing court generally would conclude that jurors stayed within the limitation, despite the prejudicial nature of the stipulation. (Cf. id, at 207 [95 L.Ed.2d at 185].) By analogy, this court should presume that the jury followed its instructions and reached decisions based on consideration of conclusively established facts–which included a felony conviction.
Second, in the absence of any instruction restricting the jury’s consideration of the felony, the only limitation would have been a logical one; i.e., would a reasonable juror necessarily have concluded, independently of the instructions, that appellant’s felon status had nothing to do with the issue of guilt of the charged offenses? Not likely. The primary factual issue for the jury must have been identification of appellant as the suspect who fled from police and presumably was the other robber. Based on other stipulations, the jury was aware that appellant and his codefendants knew each other and were close associates. But given appellant’s substantial defense, jurors may not have been convinced beyond a reasonable doubt that appellant was accurately identified by two officers. As a felon who associated with the codefendants, however, appellant must have appeared much more likely to have been involved with them in a string of robberies. Such an appearance would have been thoroughly improper (Evid. Code, S 1101, subd. (a)), but the jury had no way of knowing that.
Even regarding Count 8 itself, prejudice is manifest. Between a felon and a nonfelon as two hypothetical defendants charged with criminal possession of a firearm, an unadmonished jury is apt to believe that the former is more likely the guilty party, although that conclusion is logically and legally insupportable.
Third, to the extent that a prior felony was available for consideration in relation to the substantive charges, despite its irrelevance, it was clearly a prejudicial fact. People v. Valentine, supra, 42 Cal.3d at 179; People v. Thompson (1988) 45 Cal. 3d 8 6 , 109.) ” [T]his court long has ‘recognized the substantial prejudicial effect inherent in evidence of prior offenses . . . . ‘” (People v. Calderon (1994) 9 Cal.4th 69, 79, citations omitted.)
Fourth, while the prosecutor’s closing argument was not improper, her reference to the stipulation was in a context which reminded the jury that a felony conviction may be considered for different reasons. After noting that a gun was common to Counts 7 and 8, she continued:
And as the Judge has instructed you, the fact of his felony conviction has been stipulated to, that is a proven fact, you do not have to speculate in any way about that felony, what, when, where or anything like that. That is a proven f act. It is not in controversy.
But with regard to felony convictions, that’s something that you can consider when it comes to Mr. G. You’ve heard the Judge’s instruction, among the factors you can use in judging the credibility of a witness in a case is the fact of whether or not that individual has been previously convicted of a felony conviction. (RT 978.)
Finally, the case against appellant was not so overwhelming as to rule out, beyond a reasonable doubt, the jury’s reliance on the felony conviction as at least an influential factor in the verdict. While Mr. B and Mr. M were arrested with incriminating evidence in a car which resembled the one involved in the robberies, and while Mr. B admitted his involvement, appellant’s culpability was far less clear. Even assuming that the suspect who fled and the other person in the earlier incidents were one and the same, appellant’s identity as that person must not have been so obvious to the jury.
“The prosecution presented strong, but not overwhelming, eyewitness identification.” (People v. Valentine, supra, 42 Cal.3d at 182 [applying Watson standard in reversing].) Mr. S, the victim in the Petaluma Gas & Shop robbery, described the perpetrator as shorter and skinnier than his own five feet eight inches and 160 to 170 pounds; appellant was six feet tall and 180 pounds. Although the robber appeared Asian, as did appellant, witness Mr. T thought his skin was darker than that of appellant.
Ms. D, the Novato attempted robbery victim, could not clearly see the front passenger,, supposedly appellant, although a police report indicated that she described him as white. Ms. D did not recognize appellant at trial.
San Rafael robbery victims Mr. C and Mr. A described one robber as Asian, but could see only his eyes. Mr. C selected appellant’s picture from a photo line-up as similar to the robber, but he assumed that one of the six photographs was of the robber, so he picked the one which most resembled him, adding that the identification was possible, not positive. Mr. A also selected appellant’s photograph as most resembling the Asian robber, but only because of the facial shape. At trial, Mr. A could not identify appellant as a robber, although his facial structure appeared similar.
Ms. J, the woman who apparently saw the fleeing suspect outside her apartment door, viewed his face uncovered by a mask. Although he was of mixed race, he did not look like appellant; indeed, the witness did not believe appellant was the man. Like Mr. T at the other end of the crime spree, Ms. J thought that the suspect’s skin was darker than that of appellant.
The only truly positive identifications, of course, came from two of the police witnesses, Deputy Hunter and Officer Lewis. But they, like Mr. T, Mr. C and Mr. A, could not recall gloves on the suspect-yet they did not notice appellant’s tattooed left hand. Mr. S saw the robber both with a right-handed glove and apparently ungloved, but also did not recall the tattoos. Even Mr. B said he did not know if his accomplice wore gloves. The suspect’s hands were on the car roof before he fled, and prints were taken from that area-but did not match those of appellant.
Given the equivocal totality of the direct evidence, the circumstantial evidence-two late-night collect phone calls from Mill Valley, appellant’s sick call to work the next day, and his general association with the codefendants-does not justify evaluation of the prosecution’s case as particularly “overwhelming.”
Moreover, “[d]efendant asserted a substantial alibi defense.” (People v. Valentine, supra, 42 Cal.3d at 182.) While alibi witness Mr. G was impeached with a felony conviction, his testimony was neither incredible nor inconsistent. Indeed given his own prior conviction, his delay in coming forward might have appeared somewhat understandable, if not admirable. And his story was corroborated in part by the testimony of the theater executive.
In sum, the jury had strong reason to believe that the third suspect was an Asian associate of Mr. B and Mr. M. It had significantly less reason to believe beyond a reasonable doubt that the suspect was appellant–unless, of course, he was the only Asian person in the codefendants’ lives. Not knowing that, the issue of appellant’s involvement must have been troubling for jurors. They deliberated for five hours, during which time they chose to watch the videotape of the Gas & Shop robbery purportedly showing appellant as the only one of the three defendants. (CT 371-372.)
But the record shows that the jury knew two more things not included in the above summary: (1) Appellant was a convicted felon. (2) This fact must be–or at least could be–considered in determining whether he was the third suspect. Even under the more relaxed standard for review of state law error, it is reasonably probable that the absence of a limiting instruction affected the jury’s determination. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Valentine, supra 42 Cal.3d at 183.) And under the circumstances, where the jury was told to consider an irrelevant felony conviction–without learning of its irrelevance–it is impossible to determine that the guilty verdict against appellant “was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. (124 L.Ed.2d 182, 189 113 S.Ct. 1078, 1091].) Reversal is required.
FOOTNOTES:
Footnote 1: In a footnote in Valentine, the Supreme Court suggested the content of the instruction that should have been given in this case: “When the fact of a prior is admitted solely to prove ex-felon status, the jury can be told in clear terms that this is its only purpose and that neither the fact nor the nature of the prior has any other bearing on defendant’s credibility (if relevant) or guilt on any charge.” (People v. Valentine, supra, 42 Cal.3d at 182, fn. 8.)
Footnote 2: In the event that this court disagrees, appellant also argues that defense counsel’s failure to request a limiting instruction deprived appellant of effective assistance. (Issue II, infra.)
Footnote 3: The use of and emphasis on the plural was added by the court; as included in CALJIC No. 1.00, the sentence reads, “You must base your decision on the facts and the law.” (See CT 302.)
Footnote 4: The jury was not given the general evidentiary instruction regarding limited purpose. (CALJIC No. 2.09.)
