F 17.26

F 17.26 n1 Bifurcated Enhancement Trial: No Sua Sponte Duty to Clarify Applicability of Guilt Phase Instructions.

In the unpublished portion of People v. Mugica UNPUBLISHED (10/29/92) (G011510), the court held that the trial judge has no sua sponte duty to: 1) Reinstruct upon the presumption of innocence and, 2) Clarify which guilt phase instructions apply to the enhancement determination. However, appropriate clarification and reinstruction regarding the guilt phase instructions should be made, especially upon request. (See People v. Babbitt (88) 45 C3d 660, 718 fn 26 [248 CR 69] [judge should “expressly inform” the jury, in a capital case, which guilt instructions apply]; see also People v. Cooper (91) 53 C3d 771, 846 [281 CR 90]; People v. Livaditis (92) 2 C4th 759, 782-84, [9 CR2d 72].)

F 17.26 n2 Bifurcation: CJ 17.26 Must Be Supplemented With Elements Of the Charged Enhancement.

CJ 17.26 is designed for delivery in the bifurcated phase of trial. (See People v. Calderon (94) 9 C4th 69 [36 CR2d 333] [overruling People v. Bracamonte (81) 119 CA3d 644, 650-55 [174 CR 191], while holding that bifurcation may be ordered as a matter of discretion].) However, CJ 17.26 standing alone is incomplete. While it contains appropriate explanatory and cautionary advisements (e.g., the admonition not to be influenced by the defendant’s conviction in the current case), it assumes that the enhancements only require the jury to determine whether the defendant sustained a conviction of a certain offense on the date charged. In some cases that will be enough (e.g., a PC 667(a) allegation of a prior robbery or some other offense which always qualifies as a “serious felony”). However, in many cases, the enhancements require additional determinations above and beyond the simple fact that the defendant sustained the prior conviction.

The most obvious example is the prior prison term enhancement (PC 667.5(b)) which, as explained in People v. Jones (88) 203 CA3d 456, 459 [249 CR 840], requires jury determination of four elements: the defendant’s previous conviction of a felony, his imprisonment, the completion of the prison term, and the absence of any five-year washout. Delivery of CJ 17.26 in lieu of any other instructions defining the prior prison term enhancement effectively removes three of the four elements from the jury’s consideration. Such errors led to reversals of PC 667.5(b) enhancements in People v. Young UNPUBLISHED (A047098) and People v. John UNPUBLISHED (A058208). [Free copies of these opinions are available to FORECITE subscribers; ask for Opinion Bank # O-142 / # O-143.]

Similarly, as reflected in FORECITE’s other enhancement instructions, “serious felony” (PC 667, PC 1192.7(c)) and “habitual offender” (PC 667.7) allegations also frequently require the trier of fact to make additional findings regarding facts underlying a prior conviction (e.g., the residential character of a prior burglary, the defendant’s personal use of a deadly weapon or firearm during a felony assault, or his commission of a robbery by force). (See generally People v. Guerrero (88) 44 C3d 343, 352 [243 CR 688], allowing the trier of fact to look “behind” the judgment to the entire “record of conviction.”)

Consequently, though CJ 17.26 should still be delivered, it must be supplemented with the appropriate CALJIC or FORECITE instructions setting forth all the elements of the charged enhancement.

F 17.26 n3 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.”