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F 2.11.5 n1 Unjoined Perpetrator Instruction Improper When A Non-Prosecuted Participant Testifies.
CJ 2.11.5 should be omitted or clarified when a non-prosecuted (unjoined) participant testifies because the jury is entitled to consider the lack of prosecution in evaluating the credibility of the witness. (People v. Williams (97) 16 C4th 153, 226-27 [66 CR2d 123]; see also People v. Jones (2003) 30 C4th 1084, 1113; People v. Price (91) 1 C4th 324, 446 [3 CR2d 106]; People v. Sully (91) 53 C3d 1195, 1218 [283 CR 144]; People v. Carrera (89) 49 C3d 291, 312, fn 10 [261 CR 348]; but see People v. Fonseca (2003) 105 CA4th 543 [129 CR2d 513] [court did not err in giving CJ 2.11.5 (co-perpetrator not charged) when co-perpetrator testified; in any event, “in every case where the jury receives all otherwise appropriate general instructions regarding witness credibility, there can be no prejudice from jury instruction pursuant to CJ No. 2.11.5”].)
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-738.]
F 2.11.5 n2 Non-Prosecuted Participant: Accomplice Distinguished.
The question of whether a witness “was or may be involved in the crime,” for the purposes of CJ 2.11.5, is a separate issue from the question of whether the witness was an accomplice. (People v. Williams (97) 16 C4th 153, 226 [66 CR2d 123].)
F 2.11.5 n3 Modification Where Case Involves Both Prosecuted and Non-Prosecuted Participants.
If the case involves both prosecuted and non-prosecuted participants then CJ 2.11.5 must be modified to be applicable only to those witnesses who were fully prosecuted. (People v. Williams (97) 16 C4th 153, 226-27 [66 CR2d 133].)
F 2.11.5 n4 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 2.11.5 n5 Unjoined Accomplice Testifying Under Grant Of Immunity Or Plea Bargain.
CJ 2.11.5 should be clarified or omitted where an unjoined accomplice testified under a grant of immunity or plea bargain. (People v. Cain (95) 10 C4th 1, 34-35 [40 CR2d 481]; see also People v. Lawley (2002) 27 C4th 102, 162-63 [115 CR2d 614].) However, the failure to do so is not prejudicial where the jurors were given the full panoply of witness credibility and accomplice instructions. (Cain, supra; Lawley, supra.)
F 2.11.5a
Unjoined Perpetrators: Expanded Instruction
*Modify CJ 2.11.5 to provide as follows:
You are here to determine whether or not the guilt of the accused has been proven from the evidence in the case. You are not called upon to return a verdict as to whether the guilt of any other person or persons has been proven. So, if the evidence in the case convinces you beyond a reasonable doubt of the guilt of the accused, you should so find, even though you may believe one or more other persons also are guilty. But if a reasonable doubt remains in your minds after impartial consideration of all the evidence in the case, including any evidence of the guilt of any other person or persons, it is your duty to find the accused not guilty.
Points and Authorities
In People v. Farmer (89) 47 C3d 888, 918-19 [254 CR 508], the court noted that CJ 2.11.5 “would be more informative and might deter speculation if it told the jury explicitly that its sole duty is to decide whether this defendant is guilty and that there are many reasons why someone who also appears to have been involved might not be a co-defendant in this particular trial.”
In making this observation the court referred to Devitt, et al., Fed. Jury Prac. & Inst. (3d Ed. 1977) § 1106.
In response to Farmer CALJIC modified CJ 2.11.5 by utilizing the language contained in the Farmer opinion. (CJ 2.11.5 (1989 Revision).) However, the federal form instruction in Devitt, et al. is more complete and informative and, given Farmer’s reference to that instruction, it may be given instead of the current CALJIC instruction. (See also, Rucker & Overland, California Criminal Forms & Instructions § 41:33.)
By seeking to assure that the jurors fairly evaluate the credibility of the prosecution witnesses, and that the defendant not be convicted absent proof beyond a reasonable doubt of his or her guilt, the proposed instruction protects the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments). [See generally, FORECITE PG VII.]
NOTES
Instruction Improper When A Non-prosecuted Participant Testifies. See FORECITE F 2.11.5 n1.
F 2.11.5b
Unjoined Perpetrators: Consideration Of Third Party Guilt
*Add at end of CJ 2.11.5:
This does not preclude you from considering any evidence that the uncharged person[s], rather than the defendant, committed the crime charged. If, in light of such evidence, as well as the other evidence presented, you have a reasonable doubt whether the defendant committed the crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Or:
However, in fulfilling this duty you are not precluded from considering evidence that a person not on trial is the guilty party. To the contrary if such evidence raises a reasonable doubt as to the defendant’s guilt you must give [him] [her] the benefit of that doubt and return a verdict of not guilty.
Points and Authorities:
As an alternative to the expanded form based on the federal instruction (FORECITE F 2.11.5), the above instruction may be given to explain to the jury that it may consider the uncharged perpetrator’s guilt in determining whether or not the defendant is guilty. (See People v. Edelbacher (89) 47 C3d 983, 1017 [254 CR 586]; see also FORECITE F 4.020.) Otherwise, CJ 2.11.5 may mislead the jury when the defense is third party guilt.
F 2.11.5 n6 Instruction Improper When Witness Testifies For Prosecution Or Defense.
See FORECITE F 373 Note 2.