PG V(C) Correction Of Defects.
“Although the trial court may refuse to give a requested instruction that is argumentative or contains irrelevant factors, the court has a duty to modify an otherwise proper instruction to eliminate the faults and to tailor it to the facts of the case. [Citations.]” (California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 3.3, p. 182.)
The trial court is under an affirmative duty to give, sua sponte, correctly phrased instructions on a defendant’s theory of defense where it is obvious that the defendant is relying upon such a defense, or if there is substantial evidence to support it. (People v. Stewart (76) 16 C3d 133, 140 [127 CR 117].) “[A] court may give only such instruction as are correct statements of the law. [Citation].” (People v. Gordon (90) 50 C3d 1223, 1275 [270 CR 451].) This duty requires the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (People v. Fudge (94) 7 C4th 1075, 1110 [31 CR2d 321] [judge must tailor instruction to conform with law rather than deny outright]; see also People v. Falsetta (99) 21 C4th 903, 924 [89 CR2d 847] [“trial court erred in failing to tailor defendant’s proposed instruction to give the jury some guidance regarding the use of the other crimes evidence, rather than denying the instruction outright”]; People v. Malone (88) 47 C3d 1, 49 [252 CR 525]; People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Whitehorn (63) 60 C2d 256, 265 [32 CR 199]; People v. Coates (84) 152 CA3d 665, 670-71 [199 CR 675]; People v. Bolden (90) 217 CA3d 1591, 1597 [266 CR 724]; People v. Cole (88) 202 CA3d 1439, 1446 [249 CR 601] and cases cited therein; Witkin & Epstein, Cal. Crim. Law (2d Ed. 88) § 2954, p. 3628; but seePeople v. Houghton DEPUBLISHED (91) 228 CA3d 473 [279 CR 127] [distinguishing between the court’s sua sponte duty to correct an inaccurate instruction from trial counsel’s duty to seek further amplification of an otherwise correct instruction].) For example, even though the trial court has no sua sponte duty to instruct upon the elements of other crimes introduced at the penalty phase as aggravating factors, if instructions are given, the court has a duty to instruct correctly. (People v. Cummings (93) 4 C4th 1233, 1337 [18 CR2d 796]; see also People v. Castillo (97) 16 C4th 1009 [68 CR2d 648] [even when a trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly]; People v. Malone (88) 47 C3d 1, 49 [252 CR 525]; People v. Montiel (93) 5 C4th 877, 942 [21 CR2d 705].)
However, where the instruction requested by the defense does not bear upon a matter relating to the judge’s sua sponte duty to instruct, there may be no duty to correct the requested instruction. (See People v. Marshall (90) 50 C3d 907, 931-33 [269 CR 269] [lesser standard of invited error applies to non-sua sponte instructions requested by the defendant]; see also People v. Hendricks (88) 44 C3d 635, 643 [244 CR 181].)
See also FORECITE PG V(A)(3)(a) [Duty To Tailor Standard Form Instructions To Reflect The Facts And Legal Theories Presented At Trial].
