F 336 In-Custody Informant

TABLE OF CONTENTS
F 336 Inst 1 (a & b) Precluding Jurors From Arbitrarily Disregarding In-Custody Informant Testimony Creates An Improper Presumption Of Correctness
F 336 Inst 2 (a & b) Cautionary Instruction: Benefits Conferred Upon Informer/Testimony Of Addict Informer
F 336 Inst 3 Cautionary Instruction: Testimony Of Paid Informer
F 336 Inst 4 Cautionary Instruction: Information Received From Sources Who Are The Focus Of Charges Or Investigation
F 336 Note 1 Meaning Of “In-Custody“ Informant (PC 1127a)
F 336 Note 2 In-Custody Informant: Actual Imprisonment Not Required (PC 1127a)
F 336 Note 3 In-Custody Informant: Modification Of CALCRIM 336 (PC 1127a)
F 336 Note 4 In-Custody Informant: Payments Limited To $50 (PC 1127a)
F 336 Note 5 Informant Not In Custody (PC 1127a)
F 336 Note 6 Juvenile Informants: Limitation On Use
F 336 Note 7 Inquiry Into Nature Of Informant‘s Sentence
F 336 Note 8 Informant: Prosecution Must Disclose All Information Relevant To Credibility

Return to Series 300 Table of Contents.

F 336 Inst 1 (a & b) Precluding Jurors From Arbitrarily Disregarding In-Custody Informant Testimony Creates An Improper Presumption Of Correctness

Alternative a:

*Modify CC 336, paragraph 1, sentence 3 as follows [added language is underlined; deleted language is stricken]:

This does not mean that you may arbitrarily disregard such testimony, but you should Give it such testimony the weight, if any, to which you find it to be entitled in the light of all the evidence in the case.

Alternative b:

*Add to CC 336:

Although you must fairly consider all evidence and testimony, you have no obligation to accept any particular evidence or testimony. Nor must you articulate a reason for not accepting it.

Points and Authorities

Arbitrarily Disregard.—Requiring the jurors to supply a reason for not accepting specific testimony improperly give such testimony a presumption of truthfulness. (See FORECITE F 334 Inst 1.)

“If Any.”—See FORECITE F 105.1 Inst 6; see also F 100.1 Inst 5.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

F 336 Inst 2 (a & b) Cautionary Instruction: Benefits Conferred Upon Informer/Testimony Of Addict Informer

*Add to CC 336:

Alternative a [CC 336 Format]:

In evaluating testimony of a witness who has received a favorable disposition of a charge from the prosecution, consider the extent to which that testimony may have been influenced by the receipt of any benefits from the prosecution. You should give such testimony the weight to which you find it to be entitled in light of all the evidence in this case.

Alternative b:

You have heard testimony that _______, a witness, has received [benefits, compensation, favored treatment, etc.] from the government in connection with this case. You should examine _______’s testimony with greater caution than that of ordinary witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of [e.g., benefits] from the government.

[Source: Ninth Circuit Model Instructions (4.10.1 “Testimony of Informer” ).]

Points and Authorities

When an informer—whether in custody or not—has received benefits from the prosecution in exchange for his/her testimony, a special informer cautionary instruction is warranted. (See FORECITE F 226 Note 5.) In such a case, CALCRIM 336 may be modified as set forth above. (Logically this instruction should be included as a supplement to CC 105 and CC 226 (formerly CJ 2.20).)

The courts have long recognized that the definition of an informer includes persons who provide evidence against a defendant for personal advantage or vindication, as well as for pay or immunity. (See Guam v. Dela Rosa (9th Cir. 1980) 644 F2d 1257, 1259; Steinmark v. Parratt (D.Neb. 1977) 427 FSupp 931, 935 fn 4; U.S. v. Morgan (9th Cir. 1977) 555 F2d 238, 243 fn 10; Devitt et al, Fed. Jury Prac. & Inst. (3d Ed. 1977) ‘ 17.02; see also U.S. v. Holmes (9th Cir. 2000) 229 F3d 782, 786 [defendant entitled to specific instruction on credibility of informant witness where witness gathered information for government in return for promises of advantageous treatment or other benefits]; but see People v. Jenkins (2000) 22 C4th 900, 1009 [immunity/plea agreements do not necessarily render testimony of accomplices unreliable unless they require the witness to testify in a particular manner; agreement that specifies only that the testimony be truthful is valid].)

“Because of the stark reality [that addicts may fabricate statements for personal gain], [the 9th Circuit] has stated that when a witness is a heroin addict who provides evidence against a defendant, for some personal advantage or vindication, it is appropriate for a court to give the jury an instruction indicating that these circumstances may affect the witness’ credibility, and the jury should therefore consider the witness’ testimony with greater care than that of an ordinary witness. [Citations.]” (Singh v. Prunty (9th Cir. 1998) 142 F3d 1157; see also FORECITE F 334 Inst 4.)

Identification Of Parties.—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 6.7 [Reliability: Non-Capital Charge]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

Federal Informant Instruction Properly Refused.—In People v. Garceau (1993) 6 C4th 140, 190-91, the court held that the trial court properly refused a cautionary instruction regarding the testimony of an informant patterned after the federal instruction. The court concluded that the standard instructions on credibility of witnesses (CJ 2.20, CJ 2.21, CJ 2.22, CJ 2.23) adequately instructed the jury.

However, the witness in Garceau was not an addict informer who approached the police claiming to have information about the crime which could have easily been fabricated as was the case in Singh v. Prunty (9th Cir. 1998) 142 F3d 1157. In such a case, Garceau should not preclude a cautionary instruction upon request. (See generally, People v. Dillon (1983) 34 C3d 441, 473-74 [cases are not authority for matters not considered].)

CALJIC NOTE: See FORECITE F 3.20a.

F 336 Inst 3 Cautionary Instruction: Testimony Of Paid Informer

* Add to CC 336 when appropriate:

You have heard the testimony of __________. [He] [She] has an arrangement with the prosecution under which [he] [she] gets paid for providing information about criminal activity. The prosecution may present the testimony of such a person. Some people who get paid for providing information about criminal activity are entirely truthful when testifying. Still, you should consider the testimony of __________ with more caution than the testimony of any other witness. Since [he] [she] may believe that [he] [she] will continue to be paid only if [he] [she] produces evidence of criminal conduct, [he] [she] may have reason to make up stories or to exaggerate what others did. In deciding whether you believe __________’s testimony, you should keep these comments in mind.

[Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 25, p. 25.]

Points and Authorities

In recommending this instruction, the Federal Judicial Center observed that “it is important to draw attention to the testimony of informers, and that some explanation should be given to the jury of the reason that statements by these witnesses are subject to suspicion.” (Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 25, p. 25; see also, People v. Castro (1979) 99 CA3d 191, 197; People v. Barnett (1976) 54 CA3d 1046, 1052.) Moreover, the United States Supreme Court’s conclusion that prosecution informers are not prohibited by constitutional provisions is founded in part upon the assumption that the jury is instructed specifically and generally with cautionary instructions regarding informant testimony. (Hoffa v. U.S. (1966) 385 US 293, 312 [17 LEd2d 376]; see also, U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, 630-31.)

Identification Of Parties.—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

Even if the informer did not receive pay or immunity, a cautionary instruction may be warranted based on the informer’s desire to attain personal advantage or vindication. (See FORECITE F 336 Inst 2.)

CALJIC NOTE: See FORECITE F 3.20b.

F 336 Inst 4 Cautionary Instruction: Information Received From Sources Who Are The Focus Of Charges Or Investigation

*Add to CC 336:

Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect.

Points and Authorities

The defendant’s theory is that the statements/testimony of the primary prosecution witness is/are inherently suspect because he/she gave the statement in order to avoid charges being filed against him/her. (See People v. Campa (1984) 36 C3d 870, 882 [“Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect.” ].)

The courts have long recognized the obligation to instruct on a defendant’s theory of the case as long as that theory is supported by substantial evidence. (People v. Burnham (1986) 176 CA3d 1134, 1143.) Therefore, defendant should have the right, upon request, to an instruction upon this defense theory. (See People v. Wharton (1991) 53 C3d 522, 570.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 3.20c.

F 336 Note 1 Meaning Of “In-Custody” Informant (PC 1127a)

PC 1127a, which was effective January 1, 1990, requires that a cautionary instruction be given upon request whenever an “in-custody informant” testifies at trial. Subdivision (a) of the statute defines an in-custody informant as “a person, other than a co-defendant, percipient witness, accomplice, or co-conspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.” However, the statute does not define “correctional institution.” Nevertheless, settled rules of statutory interpretation require that the statute be applied to any situation in which the defendant and witness have been incarcerated.

The term “correctional institution” is not specifically defined anywhere in the Penal Code. While “correctional institution” is generally used to refer to state prison, there is nothing in the Penal Code which limits that term to state prisons or to institutions within the jurisdiction of the Department of Corrections. Because the term “correctional institution” as used in PC 1127a is not specifically defined by the plain language of the statute, the principles of statutory interpretation must be utilized to determine the meaning of the term. (People v. Belleci (1979) 24 C3d 879, 884.) These principles require the court to give effect to the intent of the legislature so as to effectuate the purpose of the law. (People v. Woodhead (1987) 43 C3d 1002, 1007-08.) In determining such intent, the court turns first to the words themselves, giving them their ordinary and generally accepted meaning. (People v. Craft (1986) 41 C3d 554, 559-60.) The words must be read in light of the legislative objective sought to be achieved, as well as the evil sought to be averted. (People v. Aston (1985) 39 C3d 481, 489.)

In the case of PC 1127a, it is clear that the legislative objective is to reduce the danger of unwarranted convictions based on the testimony of in-custody informants who, because of their custodial status, have a particular motive to fabricate their testimony. Clearly, this objective would not be fully achieved if the term “correctional institution” were to be limited to state correctional facilities. The danger of unwarranted conviction is just as high, if not higher, when the informant is incarcerated in a county facility as opposed to state prison. Hence, there is no rational basis for excluding county facilities from the purview of PC 1127a. In fact, such an interpretation would further violate settled principles of statutory interpretation by leading to an absurd result. And, even if there were two reasonable constructions of the statute, the one that is most favorable to the defendant must be adopted. (Bowland v. Municipal Court (1976) 18 C3d 479, 487-88.)

In sum, PC 1127a should be interpreted to include any and all facilities in which the defendant and informant have been incarcerated together.

Moreover, the failure to so construe PC 1127a would reduce the jury’s ability to fairly evaluate the credibility of the prosecution witnesses thus implicating the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments).

CALJIC NOTE: See FORECITE F 3.20 n1.

F 336 Note 2 In-Custody Informant: Actual Imprisonment Not Required (PC 1127a)

Based on the reasoning in FORECITE F 336 Note 1, PC 1127a should be applied to alleged statements by the defendant made to the informant while in custody of the authorities but not in any particular facility. (E.g., while in custody after arrest and awaiting transportation to jail; during transportation from one facility to another.) PC 4504(b) further supports this interpretation by providing that a person is “confined in” prison for purposes of in-prison offenses even though he may be temporarily outside of the prison walls or bounds for purposes such as work details.

CALJIC NOTE: See FORECITE F 3.20 n2.

F 336 Note 3 In-Custody Informant: Modification Of CALCRIM 336 (PC 1127a)

CALCRIM 336 should be modified whenever a prosecution’s witness’s testimony may have been influenced by the potential penalty facing that witness. (See FORECITE F 17.42a.)

CALJIC NOTE: See FORECITE F 3.20 n3.

F 336 Note 4 In-Custody Informant: Payments Limited To $50 (PC 1127a)

Note also that pursuant to PC 4001.1, payments to an in custody informant “in return” for testimony are limited to $50 plus expenses including relocation.

CALJIC NOTE: See FORECITE F 3.20 n4.

F 336 Note 5 Informant Not In Custody (PC 1127a)

PC 1127a requires a cautionary instruction, upon request, regarding an in custody informant. The essence of this instruction—jury should consider effect of benefits witness may have received—also applies to informers who are not in custody. (See U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, 630-31; U.S. v. Gonzalez (5th Cir. 1974) 491 F2d 1202, 1207-08; see also federal cases cited in People v. Hovey (1988) 44 C3d 543, 566.) Hence, informer cautionary instructions may “focus the jury upon the defendant’s attack on [the witness’s] credibility.” (People v. Castro (1979) 99 CA3d 191, 197; see also People v. Barnett (1976) 54 CA3d 1046, 1052.)

Accordingly, even though a non-custody informer instruction need not be given sua sponte (People v. Mickey (1991) 54 C3d 612, 674-75), it should be given upon request.

RESEARCH NOTES: See Annotation, Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution—modern cases, 80 ALR4th 547 and Later Case Service.

CALJIC NOTE: See FORECITE F 3.20 n5.

F 336 Note 6 Juvenile Informants: Limitation On Use

AB 2816, effective 9/28/98, added PC 701.5 which prohibits any peace officer or his or her agent from using anyone 12 years of age or younger as a minor informant, and from using anyone under 18 as a minor informant, except as authorized by the Stop Tobacco Access to Kids Enforcement Act (BP 22950 et seq.) unless the officer has obtained a court order authorizing the minor’s cooperation. The bill requires the court, prior to issuing such order, and after specified conditions are satisfied, to make a finding that the agreement to act as a minor informant is voluntary and is being entered into knowingly and intelligently.

The bill was originally opposed by the San Diego County District Attorney’s Office stating that the “legislation would identify for … criminal organizations a specific group of people who, by statute, will never be allowed to turn on them. Minors will be sought out and recruited for participation in dangerous drug dealing by criminals, because those same criminals know that law enforcement cannot use minors as informants.”

CALJIC NOTE: See FORECITE F 3.20 n6.

F 336 Note 7 Inquiry Into Nature Of Informant’s Sentence

U.S. v. Caldwell (8th Cir. 1996) 88 F3d 522, 524-25 [error to preclude defense inquiry into length of sentence to which witness would have been exposed absent the prosecution deal to reduce the charge].

CALJIC NOTE: See FORECITE F 3.20 n7.

F 336 Note 8 Informant: Prosecution Must Disclose All Information Relevant To Credibility

When the prosecution relies on the testimony of a criminal informant, it has an obligation to disclose “all information bearing on that witness’s credibility,” including “the witness’s criminal record … and any information therein which bears on credibility.” (Carriger v. Stewart (9th Cir. 1997) 132 F3d 463, 480.) “[The prosecution] cannot satisfy its Brady obligation to disclose exculpatory and impeachment evidence by making some evidence available and asserting that the rest would be cumulative. Rather, the state is obligated to disclose all material information casting a shadow on a government witness’s credibility.” (Benn v. Lambert (9th Cir. 2002) 283 F3d 1040, 1057-58 [internal quotation marks omitted]; see also Belmontes v. Woodford (9th Cir. 2003) 350 F3d 861 [prosecutor obligated to disclose evidence concerning informant’s misdemeanor traffic offenses.)

CALJIC NOTE: See FORECITE F 3.20 n8.