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CHK II
Sua Sponte Instructions
This checklist includes the standard CALJIC instructions which have been specifically discussed by a case, statute or CALJIC use note. The following legend is used:
“SS”= Required Sua Sponte
“No SS” = Not Required Sua Sponte
“REQ” = Required Upon Request
“No REQ” = Not Required On Request
“???” = Conflicting Or Uncertain Authority
CAVEAT: The CALJIC instructions which have not been specifically addressed are excluded from this checklist. Many such instructions may be required either sua sponte or on request.
CJ 1.00 No SS Duties of Judge and Jury
(People v. Woods (91) 226 CA3d 1037, 1054-55 [227 CR 269].) AG argues 1.00 is a limiting instruction which must be requested. Court holds that defendant should have raised issue below and in any event the omitted material was covered by CJ 2.90.
CJ 1.04 SS Cautionary Instructions on Physical Restraints
“If the restraints are in view of the jury, the court has a sua sponte duty to instruct the jury that such restraints have no bearing on the determination of the defendant’s guilt.” (People v. Duran (76) 16 C3d 282, 292 [127 CR 618].)
CJ 2.01 SS Sufficiency of Circumstantial Evidence
“Must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt.” (People v. Yrigogen (55) 45 C2d 46, 49 [286 P2d 1]; People v. Bender (45) C2d 164, 175 [163 P2d 8]; People v. Marquez (92) 1 C4th 553, 576 [3 CR2d 710]; and People v. Wiley (76) 18 C3d 162, 174 [133 CR 135].)
CJ 2.02 SS Sufficiency of Circumstantial Evidence to Prove Specific Intent/Mental State
Required instead of 2.01 when mental state or specific intent is at issue. (People v. Bloyd (87) 43 C3d 333, 352 [233 CR 368].)
CJ 2.03 SS Consciousness of Guilt — Falsehood
Failure to give this instruction sua sponte, if appropriate, held error. (People v. Atwood (63) 223 CA2d 316, 334 [35 CR 831].)
CJ 2.07 REQ Limitation of Evidence To One Defendant
Must be given upon request. (People v. Perry (72) 7 C3d 756, 787-88 [103 CR 161].)
CJ 2.08 REQ Limitation of Statement To One Defendant
Must be given upon request. (People v. Perry (72) 7 C3d 756, 787-88 [103 CR 161].)
CJ 2.09 No SS Evidence Limited As To Purpose
No duty to give sua sponte. (People v. Simms (70) 10 CA3d 299, 311 [89 CR 1].)
CJ 2.10 ??? Defendant’s Statements to Physician
Assuming error not to give 2.10 sua sponte, it was harmless. (People v. Wharton (91) 53 C3d 522, 599 [280 CR 631]; People v. Cantrell (73) 8 C3d 672, 683 [105 CR 792].)
CJ 2.12 ??? Weight of Unavailable Witness Testimony
Assuming error not to give 2.12 sua sponte, it was harmless. (People v. Wharton (91) 53 C3d 522, 599 [280 CR 631].)
CJ 2.13 No SS Consistency or Inconsistency of Prior Statements
(People v. Griffin (88) 46 C3d 1011, 1026 [251 CR 643].) “Defendant has cited no authority that the court has a sua sponte duty to instruct the jury pursuant to CALJIC 2.13, nor have we found any.”
CJ 2.13.1 ??? Miranda Violation — Defendant’s Prior Inconsistent Statement
There is a split in authority whether this instruction must be given sua sponte or only upon request of the defense.
Sua sponte: (People v. Duncan (88) 204 CA3d 613, 621-22 [251 CR 355].)
No sua sponte duty: (People v. Wyatt (89) 215 CA3d 255, 258 [263 CR 556]; People v. Disbrow (76) 16 C3d 101, 113 [127 CR 360].)
CJ 2.15 SS Possession of Stolen Property
Must be given sua sponte for the unexplained possession of stolen property in a burglary prosecution. (People v. Clark (53) 122 CA2d 342, 346 [265 P2d 43].)
CJ 2.20 SS Credibility of Witness
“… the substance of the instruction set forth as CALJIC 2.20 should henceforth always be given, and while those paragraphs thereof inapplicable under the evidence may be omitted, the paragraphs alerting the jury to the bearing of the credibility of a witness should be given ….” (People v. Rincon-Pineda (75) 14 C3d 864, 883-84 [123 CR 119].)
CJ 2.20.1 REQ Testimony of Child Under 10 Years
Must be given upon request of any party. (PC 1127f; see also People v. Dennis (98) 17 C4th 468, 526 [71 CR2d 680].)
CJ 2.21.1 No SS Discrepancies in Testimony
“Jury adequately instructed” by 2.20. (People v. Wader (93) 5 C4th 610, 644-45 [20 CR2d 788].)
CJ 2.22 SS Weighing Conflicting Testimony
“Should be given sua sponte in every criminal case in which conflicting testimony has been presented.” (People v. Rincon-Pineda (75) 14 C3d 864, 884 [123 CR 119]; People v. Snead (93) 20 CA4th 1088, 1097 [24 CR2d 922].)
CJ 2.23 ??? Felony Conviction — Impact on Witness Credibility
No SS Duty: People v. Kendrick (89) 211 CA3d 1273, 1278 [260 CR 27]. SS Duty: People v. Mayfield (72) 23 CA3d 236, 245 [100 CR 104]; People v. Lomeli (93) 19 CA4th 649, 654-56 [24 CR2d 5]; People v. Cavazos (85) 172 CA3d 589, 595-97 [218 CR 216]; People v. Roberts (76) 57 CA3d 782, 791-92 [129 CR 529].
CJ 2.27 SS Single Witness — Sufficiency of Testimony
“Should be given sua sponte in every criminal case.” (People v. Rincon-Pineda (75) 14 C3d 864, 844 [123 CR 119]; People v. Pringle (86) 177 CA3d 785, 788-90 [223 CR 214].)
CJ 2.42 No SS Character Witness — Cross-Examination
“There is no duty upon the trial court to instruct the jury ‘sua sponte.’” (People v. White (58) 50 C2d 428 [325 P 985]; People v. Daniels (91) 52 C3d 815, 883 [277 CR 122].)
CJ 2.50 No SS Other Crimes Evidence
REQ “Defendant did not request that this instruction be given and the trial court had no duty to give it sua sponte.” (People v. Morris (91) 53 C3d 152, 214 [279 CR 720]; People v. Lang (89) 49 C3d 991, 1020 [264 CR 386]; People v. Bunyard (88) 45 C3d 1189 [249 CR 71]; People v. Collie (81) 30 C3d 43, 63-64 [177 CR 458].)
CJ 2.50.01 REQ Evidence Of Other Sexual Offenses
People v. Falsetta (99) 21 C4th 903, 924 [jury should be instructed, upon request, that it is not to convict the defendant solely on evidence that the defendant committed the prior sex crimes in a case where the prior crimes are a dominant part of the prosecution’s case]; see also People v. Jennings (2000) 81 CA4th 1301, 1316.
CJ 2.50.1 REQ Preponderance of the Evidence Standard — Other Crimes Evidence
Should be given if requested. (People v. Simon (86) 184 CA3d 125, 134 [228 CR 855].)
CJ 2.51 No SS Motive
No REQ “It has now been repeatedly held that instructions on ‘motive’ need not be given on the court’s own motion; indeed, even if requested, it has been held not to be error to refuse such instructions.” (People v. Romo (75) 14 C3d 189, 195 [121 CR 111]; People v. Young (70) 9 CA3d 106, 110 [87 CR 767].)
CJ 2.52 SS Flight After Crime
Where evidence of flight is relied upon as “tending to show guilt” CJ 2.52 must be given sua sponte. (People v. Williams (60) 179 CA2d 487, 491 [3 CR 782]; PC 1127c.)
CJ 2.60 No SS Defendant Not Testifying — No Inference of Guilt
(People v. Melton (88) 44 C3d 713, 758-59 [244 CR 867]; People v. Babbitt (88) 45 C3d 660, 717 [248 CR 69].) People v. Holt (5/19/97, S016076) 15 C4th 619, 687 [63 CR2d 782] held that because CJ 2.60 may be waived for sound tactical reasons it need not be given sua sponte. Moreover, even if the instruction has been given at the guilt phase at a capital trial, it need not be repeated sua sponte at the penalty phase.
CJ 2.61 No SS Defendant May Rely On State Of Evidence
(People v. Melton (88) 44 C3d 713, 758-59 [244 CR 867]; People v. Babbitt (88) 45 C3d 660, 717 [248 CR 69]; People v. Preston (73) 9 C3d 308 [107 CR 300].)
CJ 2.62 No SS Testimony — Adverse Inference
“The trial court had no sua sponte duty to instruct using CALJIC No. 2.62.” (People v. Gallego (90) 52 C3d 115, 183 [276 CR 679].)
CJ 2.70 SS Confession and Admission — Defined
(Guilt) Instruction that evidence of oral admissions must be viewed with caution must be given sua sponte. (People v. Beagle (72) 6 C3d 441, 455-56 [99 CR 313]; People v. Henry (72) 22 CA3d 951, 956-60 [99 CR 723].)
(Penalty) No SS (People v. Livaditis (92) 2 C4th 759, 784 [9 CR2d 72].)
REQ
CJ 2.71 SS Admission — Defined
(Guilt) “Trial court erred in failing to instruct sua sponte.” (People v. Stankewitz (90) 51 C3d 72, 93 [270 CR 817].)
“If defendant’s oral admissions are introduced into evidence, the trial court must sua sponte deliver the instruction.” (People v. Marks (88) 45 C3d 1335, 1346 [248 CR 874]; People v. Bunyard (88) 45 C3d 1189, 1224 [249 CR 71]; People v. Beagle (72) 6 C3d 441, 455 [99 CR 313].)
(Penalty) No SS (People v. Livaditis (92) 2 C4th 759, 784 [9 CR2d 72].)
REQ
CJ 2.71.5 No SS Adoptive Admission — Reaction of Defendant To Accusation
CJ 2.71.5 need not be given sua sponte even where there is evidence of an adoptive admission. (People v. Carter (2003) 30 C4th 1166, 1198.)
CJ 2.71.7 SS Defendant’s Pre-Offense Statement
“Trial court erred in failing to instruct sua sponte.” (People v. Stankewitz (90) 51 C3d 72, 93 [270 CR 817]; People v. Bunyard (88) 45 C3d 1189, 1224 [249 CR 71].)
CJ 2.72 SS Independent Proof of Corpus Delicti
“Trial court erred in failing to instruct sua sponte that the corpus delicti must be proved independently of admissions.” (People v. Beagle (72) 6 C3d 441, 455 [99 CR 313]; People v. Brucher (83) 148 CA3d 230, 237 [195 CR 808].)
Held it was “error not to give CALJIC 2.72 sua sponte.” (People v. Holbrook (55) 45 C2d 228, 234 [228 P2d 1].)
CJ 2.80 SS Expert Testimony
“When the opinion of any expert witness has been received in evidence, this instruction must be given sua sponte.” (People v. Bowens (64) 229 CA2d 590, 600 [40 CR 435]; People v. Gonzalez-Ruiz (70) 11 CA3d 852, 864-65 [90 CR 110].)
CJ 2.90 SS Presumption of Innocence — Reasonable Doubt — Burden of Proof
An instruction requiring the prosecution to prove guilt beyond a reasonable doubt must be given sua sponte. (People v. Soldavini (41) 45 CA2d 460, 463-64 [114 P2d 415]; People v. Vann (74) 12 C3d 220, 225 [115 CR 352].)
“Any factor relied upon for aggravation of sentence must be proved beyond a reasonable doubt ….” and CALJIC 2.90 given. (People v. Melton (88) 44 C3d 713, 758 [244 CR 867].)
CJ 2.91 No SS Identity — Burden of Proof
(People v. Alcala (92) 4 C4th 742, 803 [15 CR2d 432].)
CJ 2.92 No SS Eyewitness Identification — Proof Factors
(People v. Alcala (92) 4 C4th 742, 803 [15 CR2d 432].)
CJ 3.01 SS Aiding and Abetting — Defined
“Last two paragraphs should be given sua sponte, if the evidence, believable or not, warrants.” (People v. Perry (79) 100 CA3d 251, 260-61 [161 CR 108].)
CJ 3.10 SS Accomplice — Defined
Must be given sua sponte. (People v. Boyce (80) 110 CA3d 726, 738 [168 CR 219]; People v. Gordon (73) 10 C3d 460, 470 [110 CR 906]; People v. Bevins (60) 54 C2d 71, 76 [4 CR 504].)
CJ 3.11 SS Accomplice Testimony — Need for Corroboration
“Necessary”. (People v. Guiterrez (91) 232 CA3d 1624, 1637 [284 CR 230].) Jurors must be instructed sua sponte as to requirement of corroboration of testimony of an accomplice. (People v. Bevins (60) 54 C2d 71, 76 [4 CR 504]; People v. Gordon (73) 10 C3d 460, 470 [110 CR 906].)
But, the failure to instruct on the need for corroboration is harmless where the record contains substantial corroborative evidence. (People v. Miranda (87) 44 C3d 57, 100 [241 CR 594]; People v. Marquez (93) 16 CA4th 115, 121 [20 CR2d 365].)
CJ 3.12 SS Sufficiency of Evidence to Corroborate An Accomplice
“Because of … status as an accomplice … was an issue for the jury to resolve [and] … were not requested by appellant … [CALJIC numbers 3.10, 3.11, 3.12, 3.13, 3.18 and 3.19] … the trial court had a duty to give them sua sponte.” (People v. Boyce (80) 110 CA3d 726, 738 [168 CR 219]; People v. Bevins (60) 54 C2d 71, 76 [4 CR 504]; People v. Jones (64) 228 CA2d 74, 94-95 [39 CR 202].)
CJ 3.13 SS One Accomplice May Not Corroborate Another
(See People v. Sanders (1995) 11 Cal.4th 475, 533-534; see also People v. Snyder (2003) 112 CA4th 1200, 1219-20; but see People v. Boyce (80) 110 CA3d 726, 738 [168 CR 219] [“Because of … status as an accomplice … was an issue for the jury to resolve [and] … were not requested by appellant … [CALJIC numbers 3.10, 3.11, 3.12, 3.13, 3.18 and 3.19] … the trial court had a duty to give them sua sponte.”].)
CJ 3.16 SS Witness Accomplice as Matter of Law
This instruction should be given sua sponte when the witness is an accomplice as a matter of law. (People v. Robinson (64) 16 C2d 373, 394-96 [38 CR 890]; People v. Daily (60) 179 CA2d 482, 485-86 [3 CR 852].)
CJ 3.18 SS CJ 3.18 Accomplice Testimony Viewed With Caution. Sua sponte duty to give as to any incriminating testimony by accomplice. (People v. Guiuan (98) 18 C4th 558 [76 CR2d 239]; see also People v. Williams (88) 45 C3d 1268, 1313-14
Must be given sua sponte where status of witness is an issue for the jury to decide. (People v. Boyce (80) 110 CA3d 736, 738 [168 CR 219].)
CJ 3.19 SS Burden of Proof — Corroboration of Witness as Accomplice
Must be given if CALJIC 3.13 is given. (People v. Tewksbury (76) 15 C3d 953, 967-69 [127 CR 135].)
“Where it is for the jury to determine whether or not the witness is an accomplice, the court should so charge, and should instruct as to what constitutes an accomplice.” (People v. Jones (64) 228 CA2d 74, 95 [39 CR 302]; People v. Parker (84) 156 CA3d 221 [202 CR 704].)
“Where the status of the witness as an accomplice … was an issue for the jury to decide … the trial court had a duty to give sua sponte.” (People v. Boyce (80) 110 CA3d 736, 738 [168 CR 219].)
CJ 3.20 REQ Cautionary Instruction — In-Custody Informant
PC 1127a.
CJ 3.30 SS Concurrence of Act and General Intent
Where “charged with both specific intent and general intent crimes … we will assume arguendo (n 14) the trial court had a sua sponte duty to give CALJIC 3.30.” (People v. Cleaves (91) 229 CA3d 367, 380 [280 CR 146].)
Required: (People v. Beach (83) 147 CA3d 612, 626-27 [195 CR 381].)
Assumes arguendo: (People v. Gonzalez (78) 81 CA3d 274, 279 [146 CR 417].)
CJ 3.31 SS Concurrence of Act and Specific Intent
Must be given by the court on its own motion in a specific intent crime. (People v. Ford (64) 60 C2d 772, 792-93 [36 CR 620]; People v. Turner (71) 22 CA3d 174, 184 [99 CR 186]; People v. Cleaves (91) 229 CA3d 367, 380 [280 CR 146]; People v. Hill (80) 103 CA3d 525, 539 [163 CR 99].)
CJ 3.31.5 SS Mental State
(People v. Cleaves (91) 229 CA3d 367, 380 [280 CR 146].)
CJ 3.32 REQ Evidence of Mental Disease — Limited Purpose
(People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364].)
CJ 3.35 REQ Concurrence of Act and Criminal Negligence
(People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364].)
CJ 3.36 REQ Criminal or Gross Negligence — Defined
(People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364].)
CJ 3.40 SS Proximate Cause
Must be given sua sponte where the jury must determine whether defendant’s act was the proximate cause of the result of the crime. (People v. Bernhardt (63) 222 CA2d 567, 591 [35 CR 401].)
CJ 3.41 SS Multiple Proximate Cause/Concurrent Cause
(People v. Roberts (92) 2 C4th 271, 321-22 [6 CR2d 276]: [jury must be instructed on foreseeability of intervening cause].)
CJ 4.01 REQ Not Guilty By Reason of Insanity — Effect of Verdict
Must be given at request of the defendant. (People v. Kelly (92) 1 C4th 495, 538 [3 CR2d 677]; People v. Dennis (85) 169 CA3d 1135, 1140-41 [215 CR 750].)
CJ 4.02 REQ Legal Insanity From Continuing Drug Caused Psychosis.
If requested and if supported by substantial evidence, the court must instruct upon legal insanity resulting from a continuing state of psychosis, temporary or permanent, which persisted after the immediate effects of the drug use wore off. People v. Randolph (93) 20 CA4th 1836, 1841 [25 CR2d 723].
CJ 4.21 REQ Voluntary Intoxication — Relevancy to Specific Intent
(People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also People v. San Nicolas (2004) 34 C4th 614, 690 [intoxication instruction must be requested].)
CJ 4.30 SS Unconscious Act Defined/Burden of Proof
Court must instruct on unconsciousness sua sponte if there is evidence of involuntary unconsciousness. (People v. Tidwell (70) 3 C3d 82, 86 [89 CR 58]; People v. Moore (70) 5 CA3d 486, 492 [85 CR 194]; People v. Jones (81) 123 CA3d 83, 93 [176 CR 398].)
CJ 4.35 SS Ignorance or Mistake of Fact
“We note that the trial court has a duty not only to give requested instructions on applicable defenses upon which the defendant relies, but that a sua sponte duty also exists. Arguably the trial court here would have had the duty to give a mistake of fact instruction whether or not appellant had requested one.” (People v. Lucero (88) 203 CA3d 1011, 1018 fn 4 [250 CR 354].)
CJ 4.40 ??? Threats and Menaces
The court is under no duty to give this instruction sua sponte where the evidence shows that defendant feared a physical beating but did not fear that his life was in danger. (People v. Subielski (85) 169 CA3d 563, 566-67 [211 CR 579].)
In People v. Madden (81) 116 CA3d 212, 220 [171 CR 897], the court assumed that sua sponte instruction on duress would be required if the record contained sufficient evidence for the instruction.
CJ 4.45 SS Accident and Misfortune
“The trial court was obligated to instruct the jury sua sponte on the defense of accident and misfortune and it was error for the trial court to have failed to do so.” (People v. Jones (91) 234 CA3d 1303, 1314 [286 CR 163].)
CJ 4.50 REQ Alibi
Defendant contends his alibi defense imposed a duty upon the trial court to instruct the jury sua sponte pursuant to CALJIC No. 4.50. We repeatedly have rejected the identical contention. (People v. Alcala (92) 4 C4th 742, 804 [15 CR2d 432]; People v. Freeman (78) 22 C3d 434, 437-39 [149 CR 396].)
CJ 4.60 SS Entrapment — When a Defense/Burden of Proof
“On the record of this case the trial court erred in failing to instruct the jury sua sponte on the defense of entrapment. Defendant was entitled to such an instruction on the standards set forth in People v. Sedeno (74) 10 C3d 703, 715-16 [112 CR 1].” (People v. Barraza (79) 23 C3d 675, 691-92 [153 CR 459].)
CJ 4.71 No SS Proof Need Not Show Exact Time of Crime
(People v. Seabourn (92) 9 CA4th 187, 194 [11 CR2d 641].)
CJ 4.71.5 SS When Proof Must Show Acts Within Time Alleged
When appropriate under the evidence, this instruction must be given sua sponte. (People v. Madden (81) 116 CA3d 212, 215-19 [171 CR 897].)
Jury must be instructed (sua sponte) with either CALJIC No. 17.01 or 4.71.5. (People v. Vargas (88) 204 CA3d 1455, 1461 [251 CR 904].)
CJ 4.80 SS Parents Right to Discipline Child
“Court has a sua sponte duty to instruct on the right of a parent to discipline a child in a PC 273(d) prosecution where the defendant relied on such defense, or where there was substantial evidence to support such a defense; the failure to do so was prejudicial error.” (People v. Whitehurst (92) 9 CA4th 1045, 1049-51 [12 CR2d 33].)
CJ 5.10 SS Justifiable Homicide — Resisting A Felony
“The trial court is required to instruct sua sponte only on general principles of law relevant to issues raised by the evidence [citation] and on particular defenses when a defendant appears to be relying on such defense and there is substantial evidence to support it. [Citation.]” (People v. Lang (89) 49 C3d 991, 1022 [264 CR 386]; People v. Sedeno (74) 10 C3d 703, 715-16 [112 CR 1]; People v. Holt (44) 25 C2d 59, 64-65 [153 P2d 21]; People v. Mayweather (68) 259 CA2d 752, 755-56 [66 CR 547].)
CJ 5.12 SS Justifiable Homicide in Self-Defense
(People v. Sedeno (74) 10 C3d 703, 715-16 [112 CR 1]; People v. Holt (44) 25 C2d 59, 64-65 [153 P2d 21]; People v. Mayweather (68) 259 CA2d 752, 755-56 [66 CR 547].)
CJ 5.13 SS Justifiable Homicide — Defense of Self or Another
(People v. Sedeno (74) 10 C3d 703, 715-16 [112 CR 1]; People v. Holt (44) 25 C2d 59, 64-65 [153 P2d 21]; People v. Mayweather (68) 259 CA2d 752, 755-56 [66 CR 547].)
CJ 5.15 R Self-Defense — Specification of Prosecution’s Burden
(See FORECITE F 5.15a.)
CJ 5.16 SS Definition of a Forcible and Atrocious Crime
(People v. Ainsworth (88) 45 C3d 984, 1026 [248 CR 568].)
CJ 5.17 SS Honest But Unreasonable Belief of Necessity To Defend — Manslaughter
“The instruction must be given if some evidence is presented that supports the defendant’s contention that the defendant honestly but unreasonably believed, whether because of a mistake or an insane delusion, that lethal force was necessary to prevent death or great bodily injury.” (People v. Uriarte (90) 223 CA3d 192 [272 CR 693]; see also People v. DeLeon (92) 10 CA4th 815, 823-24 [12 CR2d 825].)
“Where there is an appropriate factual basis, the instruction that an honest but unreasonable belief in the need to defend negates malice aforethought should be given sua sponte.” (People v. Flannel (79) 25 C3d 668, 680-83 [160 CR 84].)
CJ 5.30 SS/REQ Self-Defense Against Assault
To the extent that CJ 5.30 is necessary to instruct the jury on the applicability of self-defense to less than deadly force it should be given sua sponte. (See People v. Sedeno (74) 10 C3d 703, 715-16 [112 CR 1]; compare CJ 5.10 and CJ 5.12; but see People v. Enriquez (77) 19 C3d 221, 227 [137 CR 171] [CJ 5.30 and CJ 5.31 not required sua sponte where court had already instructed on justifiable homicide].)
CJ 5.30 should be given with CJ 9.28 (excessive force). (People v. White (80) 101 CA3d 161, 166-69 [161 CR 541].)
CJ 5.31 No SS Assault with Fists — Use of a Deadly Weapon Not Justified
REQ “Defendant now claims that the court should have instructed in terms of CALJIC Nos. 5.30 and 5.31 …. A trial court is not, absent a request therefor, required to instruct on specific points developed out of the particular facts presented at trial.” (People v. Enriquez (77) 19 C3d 221, 227 [137 CR 171].)
“No error resulted form the court’s refusal to give CALJIC No. 5.31 sua sponte. The court gave CALJIC No. 5.30 which adequately informed the jury.” (People v. Wittig (84) 158 CA3d 124, 136 [204 CR 378].)
Should be given with CJ 9.28 (excessive force). (People v. White (80) 101 CA3d 161, 166-69 [161 CR 541].)
CJ 5.42 No SS Resisting an Intruder Upon One’s Property
There is no sua sponte duty to give an instruction based upon the presumption so long as the jury is otherwise adequately instructed on self-defense. (People v. Owen (91) 226 CA3d 996, 1004-07 [227 CR 341].)
CJ 5.54 No SS Self-Defense by an Aggressor
“Defendant did not request the instruction and the court had no obligation under the evidence to give the instruction sua sponte.” (People v. Bloyd (87) 43 C3d 333, 354 [233 CR 368].)
CJ 6.00 SS Attempt — Defined
“Inasmuch as a particular ‘specific intent’ is an inherent element of the ‘attempt’ offense defined by PC 69, the trial court is obligated to instruct the jury as to that particular, specific intent on a sua sponte basis, if necessary. [Citation.] (People v. Quiroz DEPUBLISHED (89) 213 CA3d 1001 [261 CR 852]; see also People v. Kelley (90) 220 CA3d 1358, 1365-70 [269 CR 900].) [A copy of the Quiroz opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-154.]
CJ 6.01 ??? Abandonment of Attempt — When Not a Defense
“We can envision a state of facts which … might require … a sua sponte clarifying instruction to amplify the meaning of CALJIC No. 6.01.” (People v. Marshall DEPUBLISHED (81) 121 CA3d 627 [175 CR 497].)
CJ 6.10 SS Conspiracy and Overt Act — Defined
CJ 6.10 and CJ 17.50 are “proper and complete.” (People v. Luparello (86) 187 CA3d 410, 420-21 [231 CR 832].)
CJ 6.10.5 SS Conspiracy and Overt Act When Not Charged — Defined
(People v. Earnest (75) 53 CA3d 734, 744-45 [126 CR 107]; see also People v. Brawley (69) 1 C3d 277, 291-92 [82 CR 161].)
From People v. Sully (91) 53 C3d 1195, 1231 [283 CR 144].
CJ 6.15 No SS Liability For Independent Acts of Co-Conspirators
(5th Edition) (People v. Flores (92) 7 CA4th 1350, 1363 [9 CR2d 754].) NOTE: CJ 6.15 was deleted in the 6th Edition (1997). See FORECITE F 6.15a for the 5th Edition instruction.
CJ 6.19 ??? Joining Conspiracy After Formation
“We do not decide, as appellant requests, that failure to give CALJIC No. 6.19 sua sponte was reversible error.” (People v. Brown (91) 226 CA3d 1361, 1372 [277 CR 309].)
CJ 6.22 SS Conspiracy — Each Defendant Considered Independently
This instruction must be given sua sponte in cases where more than one defendant is charged with conspiracy. (People v. Fulton (84) 155 CA3d 91, 10-1 [201 CR 879]; People v. Crain (51) 102 CA2d 566, 581-82 [288 P2d 307].)
CJ 6.24 Admissibility of Co-Conspirator’s Statements: Sua Sponte Duty To Instruct.
SS (See People v. Smith (86) 187 CA3d 666, 679 [231 CR 897]; see also People v. Prieto (2003) 30 C4th 226, 261 [133 CR2d 18] [assuming a sua sponte duty to instruct].)
CJ 6.40 No SS Accessories
No sua sponte duty to instruct on the elements of the underlying crime (murder) where the corpus delicti of the crime was established by uncontradicted evidence. (People v. Shields (90) 222 CA3d 1, 4-5 [271 CR 228].)
CJ 8.21 ??? First Degree Felony Murder
“The court must also instruct sua sponte that the specific intent to commit the involved felony be proved beyond a reasonable doubt.” (People v. Sears (65) 62 C2d 737, 744-45 [44 CR 330].)
“Contrary to appellants’ assertion nothing in Sears or Whitehorn levies a sua sponte duty on the trial judge to read CJ 8.21.” (People v. Jurado (81) 115 CA3d 470, 493 n 21 [171 CR 509]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711]; People v. Whitehorn (63) 60 C2d 256, 265 [32 CR 199].)
CJ 8.32 No SS Second Degree Felony Murder
REQ “Even if the request to give CJ No. 8.32 is assumed tantamount to a request for the desired instruction (CJ No. 8.21), its omission was harmless. (People v Jurado (81) 115 CA3d 470, 493 [171 CR 509].)
CJ 8.33 SS Second Degree Felony Murder — Conspiracy
“A conspiracy to commit murder is not necessarily a conspiracy to commit murder in the first degree (i.e., conspiracy is not the equivalent of malice aforethought) and the court must instruct on lesser included defenses of 2nd degree murder and manslaughter.” (People v. Williams (65) 63 C2d 452, 547-548 [47 CR 7].)
CJ 8.45 SS Involuntary Manslaughter — Defined
Must be given sua sponte. (People v. McManis (72) 26 CA3d 608, 614 [102 CR 889].)
CJ 8.50 SS Murder and Manslaughter — Distinguished
[See CJ 5.17 of this Checklist.]
CJ 8.51 SS Murder and Manslaughter Distinguished
CJ 8.51 should be given as a supplement to CJ 8.50 “in any case where there is such evidence of involuntary manslaughter that the distinction between this crime and murder should be explained.” (CJ 8.50 Use Note.) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-566.]
CJ 8.55 SS Homicide — Proximate Cause Defined
Where proximate cause is an issue, instruction thereon must be given sua sponte. (People v. Bernhardt (63) 222 CA2d 567, 591 [35 CR 401].)
CJ 8.71 SS First or Second Degree Murder — Doubt
[CALJIC Use Note]
CJ 8.72 SS Murder or Manslaughter — Doubt
“Where evidence supports a finding of murder or manslaughter, failure to give an instruction such as this is reversible error.” (People v. Dewberry (59) 51 C2d 548, 556-57 [334 P2d 852].)
Should be given sua sponte. (People v. Aikin (71) 19 CA3d 685, 699-705 [97 CR 251]; see also People v. Reeves (81) 123 CA3d 65 [CJ 8.72 required sua sponte even if CJ 17.10 is given].)
But see People v. Barajas (2004) 120 CA4th 787 [no sua sponte obligation to give CJ 8.72 when CJ 17.10 is given]; People v. St. Germain (82) 138 CA3d 507 [no obligation to give CJ 8.72 sua sponte or on request].
CJ 8.74 No SS Unanimous Agreement — First or Second Degree Murder or Manslaughter
“We have not found authority which requires it (8.74) to be given sua sponte, and failure to give it is not error.” (People v. Kozel (82) 133 CA3d 509, 528 [184 CR 208].)
CJ 8.86 No SS Penalty Trial — Other Crimes Convictions — Proof Beyond a
(Elements of REQ Reasonable Doubt
Aggrav. Crimes) (People v. Price (91) 1 C4th 324, 489 [3 CR2d 106]; People v. Davenport (85) 41 C3d 21, 53-56 and fn 19 [188 CR 77].)
CJ 8.87 No SS Penalty Trial — Other Criminal Activity — Proof Beyond a
(Elements of REQ Reasonable Doubt
Aggrav. Crimes) (People v. Price (91) 1 C4th 324, 489 [3 CR2d 106]; People v. Davenport (85) 41 C3d 21, 53-56 and fn 19 [188 CR 77].)
CJ 8.93 SS [Gross] Vehicular Manslaughter While Intoxicated
In People v. Bismillah DEPUBLISHED (94) 21 CA4th 1525, 1530 [26 CR2d 746], the Court of Appeal held that the term “proximate cause” as used in VC 2800.2 and VC 23153(a) is a technical term requiring sua sponte definition.
CJ 9.12 No SS Battery With Serious Bodily Injury
No duty to sua sponte instruct upon meaning of the word “willful” as used in this instruction. (People v. Brucker (83) 148 CA3d 230, 238-39 [195 CR 808].)
CJ 9.29 SS Performance of Duty of Office — Burden of Proof
Must be given when defense of excessive force is presented. (People v. White (80) 101 CA3d 161, 166-69 [161 CR 541].)
CJ 9.57 SS Kidnapping of One Incapable of Consent
(People v. Oliver (61) 55 C2d 761, 768; People v. Dykes UNPUBLISHED (C012736).) ([A copy of the Dykes opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-132.] [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-567.]
CJ 10.64 SS Cautionary Instruction — Child Abuse, Rape, Trauma Syndrome
(Child Abuse/ Court has sua sponte duty to give a limiting instruction whenever CS AAS
Rape Trauma evidence is presented to the jury by the prosecution. (People v. Housley
Syndrome (92) 6 CA4th 947, 958-59 [8 CR2d 431].)
CJ 10.65 SS Consent — Forcible Rape, Oral Copulation, Sodomy, Foreign Object
Must be given if substantial evidence of equivocal conduct that would have led to reasonable belief in consent. (People v. Williams (92) 4 C4th 354, 364 [14 CR2d 441].)
SS Applies to PC 289(a) foreign object. (People v. Castillo (87) 193 CA3d 119, 125 [238 CR 207].)
CJ 10.66 SS Forcible Rape — Prior Consensual Acts With Defendant
Where there is evidence of a good faith belief that the victim consented, the jury must be instructed to consider such evidence on the issue of consent. (People v. Perez (87) 194 CA3d 525, 528-30 [228 CR 228].)
CJ 10.67 SS Belief As to Age — Oral Copulation, Sodomy, Foreign Object
(CALJIC Use Note; People v. Peterson (81) 126 CA3d 396, 397 [178 CR 734].)
CJ 12.06 SS Momentary Possession As Not Unlawful
(Momentary (People v. Mijares (71) 6 C3d 415, 423 [99 CR 139]; see also 1989 CALJIC
Possession) Revision.)
CJ 12.60 SS Vehicle Driving While Under The Influence or Drugged
In People v. Bismillah DEPUBLISHED (94) 21 CA4th 1525, 1530 [26 CR2d 746], the Court of Appeal held that the term “proximate cause” as used in VC 2800.2 and VC 23153(a) is a technical term requiring sua sponte definition.
CJ 12.85 SS Flight From Pursuing Peace Officer
In People v. Bismillah DEPUBLISHED (94) 21 CA4th 1525, 1530 [26 CR2d 746], the Court of Appeal held that the term “proximate cause” as used in VC 2800.2 and VC 23153(a) is a technical term requiring sua sponte definition.
CJ 14.14 SS Proof of False Pretense
An instruction giving the requirements of a false pretense as stated in PC 1110, must be given sua sponte. (People v. Kutcher (50) 97 CA2d 209, 216 [217 P2d 757]; People v. Mason (73) 34 CA3d 281, 286 [109 CR 867].)
CJ 14.54 SS Burglary — When Intent to Abet Must Be Formed
(People v. Escobar (92) 7 CA4th 1430, 1435 [9 CR2d 770].)
CJ 16.110 SS Performing or Discharging Duties of Officer — Burden of Proof
Where the defendant is charged with a violation of PC 148, PC 241(b) or PC 243(b) and it is contended that the arrest was unlawful because excessive force was used, this instruction must be given. (People v. White (80) 101 CA3d 161, 167 [161 CR 541].)
CJ 16.830 SS Misdemeanor Driving Under The Influence
In People v. Bismillah DEPUBLISHED (94) 21 CA4th 1525, 1530 [26 CR2d 746], the Court of Appeal held that the term “proximate cause” as used in VC 2800.2 and VC 23153(a) is a technical term requiring sua sponte definition.
CJ 17.00 SS Several Defendants — Verdicts Determined Independently
(People v. Mask (86) 188 CA3d 450, 457 [233 CR 181].)
CJ 17.01 SS Verdict on One of a Number of Unlawful Acts
[See FORECITE F 17.01.]
CJ 17.02 No SS Several Counts — Each Count Decided Separately
(People v. Beagle (72) 6 C3d 441, 456 [99 CR 313].)
CJ 17.03 SS Two Counts — Same Occurrence, Only One Crime
“Since there was no evidence here of more than one act or transaction, the trial court had a sua sponte duty to give the jury CALJIC No. 17.03.” (People v. Black (90) 222 CA3d 523, 525 [271 CR 771].)
“[T]he trial court must instruct the jury, sua sponte, to the effect that they may not find the accused guilty of receiving from himself property stolen from him during the commission of the burglary.” (People v. Perez (74) 40 CA3d 795, 800 [115 CR 405].)
CJ 17.10 SS Conviction of Lesser Included or Lesser Related Offense
“… the trial court erroneously failed to instruct the jury sua sponte that, if they entertained a reasonable doubt as to which of two offenses was committed, they must convict of the lesser offense only.” (People v. Reeves (81) 123 CA3d 65, 69 [176 CR 182].)
CJ 17.11 SS Conviction of Lesser Degree
(People v. Dewberry (59) 51 C2d 548, 555-57 [334 P2d 852].)
