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Felony Murder Special Circumstance: “Actual Killer” Determination — CALCRIM 703 Misstates the Burden of Proof

California law and the federal constitution require a finding of one of the following as an essential element of the felony murder special circumstance enumerated in Penal Code § 190.2(a)(17):

  1. The defendant was the actual killer of the victim; or
  2. The defendant acted with intent to kill; or
  3. The defendant aided and abetted the murder with:
  4. Reckless indifference to human life and
  5. As a major participant in the crime.

(See Tison v. Arizona (1987) 481 U.S. 137; Enmund v. Florida (1982) 458 U.S. 782; People v. Estrada (1995) 11 Cal.4th 568, 575-576.)

To obtain a true finding on a felony murder special circumstance allegation the prosecution is required to prove one of these options beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 686 fn. 36 [jury properly instructed that “The People have the burden of proving the truth of the special circumstances.”]; see also Ring v. Arizona (2002) 536 U.S. 584, 609; Apprendi v. New Jersey (2000) 530 US 466; CC 700.)

However, CC 703 fails to expressly set for the prosecution’s burden of proof as to the “actual killer” option. In fact, the only reference to the “actual killer” option is the following obtuse reference in the first sentence of the instruction:

If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of <insert felony murder special circumstance[s]>, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.

At best this language is ambiguous and confusing because it seemingly applies to the substantive finding of first degree finding and not the determination of special circumstance liability. And, there is nothing in the standard substantive felony murder instructions which requires the prosecution to prove the defendant was the actual killer. To the contrary, the vicarious liability instructions on felony and conspiracy expressly apply to non-killers. Thus, the CALCRIM instructions completely omit any direct language — in the guilt or special circumstance instructions — that requires the prosecution to prove that the defendant was the actual killer.

Moreover, the one reference to the “actual killer” element in CC 703 suggests — by implying that the jury must decide if the defendant was “not the actual killer” — that the defendant was obligated to prove that (he/she) was not the actual killer which would unconstitutional shift the burden of proof to the defense. (But see CC 700 [generally instructing that prosecution must prove all special circumstance allegations; cf., People v. Covarrubias (2016) 1 Cal.5th 838, 829, 932 [burden not shifted where other instructions properly explained actual killer option: ” ‘if you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.’ ” People v. Covarrubias (2016) 1 Cal.5th 838, 929; italics in original.].)

In any event, whether unconstitutional or only potentially confusing, CC 703 should be modified to plainly set forth the three option for felony murder special circumstance liability.

Sample Instruction [People v. Covarrubias (2016) 1 Cal.5th 838, 932]

If you find beyond a reasonable doubt that defendant was the actual killer, then you are not required to find intent to kill or reckless indifference. Otherwise, if you cannot find beyond a reasonable doubt that defendant was the actual killer, then you are required to make a finding regarding whether the prosecution has proved beyond a reasonable doubt intent to kill or reckless indifference as a major participant.

Sample Instruction [Modification of CC 703]:

If you decide that (the/a) defendant is guilty of first degree murder then you must consider the special circumstance[s] allegation[s]. In order to prove the felony murder special circumstance, the must prove must each of the following beyond a reasonable doubt:

 

  1. The defendant personally killed ________________[name of victim];

          OR   

  1. Before or during the killing the defendant intended ________________[name of victim] be killed;

          OR

  1. The defendant
  2. Knowingly engaged in criminal activity;
  3. The defendant’s participation in the crime/[__________e.g., robbery] began before or during the killing;
  4. The defendant was a major participant in the crime/[__________e.g., robbery].

          AND

  1. When the defendant participated in the crime/[__________e.g., robbery], (he/she) knew it involved a grave risk of death;

Sample Instruction [Adaption of CC 702]

If the prosecution has proved the guilty of first degree murder and that the defendant was the actual killer then this alone is sufficient for you to find this special circumstance is true. However, if you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find the felony murder special circumstance true, you must find that the defendant acted with the intent to kill or acted with reckless indifference as a major participant in the crime.

 

If the People have not met this burden, you must find this special circumstance has not been proved true.

Defendants Whose Cases Are Pending on Appeal May Seek to Stay Their Appeals in Order to Pursue Relief Under SB 1437

People v. Gentile (Dec. 17, 2020, S256698) concluded that SB 1437 bars a conviction for second degree murder under the natural and probable consequences theory. It also held that the procedure set forth in section PC 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal. See this post SB 1437, Which Amended The Natural And Probable Consequences Doctrine As It Relates To Murder, Bars A Conviction For Second Degree Murder Under That Theory

However, the Court further held that “nothing prevents defendants from seeking to stay their direct appeals in order to pursue relief under Senate Bill 1437.” While a notice of appeal vests jurisdiction in the appellate court until determination of the case and issuance of the remittitur, a defendant whose case is pending on appeal may file a motion requesting a stay of the appeal and a limited remand for the purpose of pursuing section 1170.95 relief. An appellate court may grant such a stay and limited remand where good cause supports the motion.

Felony Murder Special Circumstance: Any One Tison Factor May, by Itself, Leave the Jurors with A Reasonable Doubt

CC 703 includes the following caveat regarding the specific factors listed for the jury’s consideration as to the reckless indifference and major participant allegations:

 

No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant [acted with reckless indifference to human life] [was a major participant.]

 

This caveat — by focusing only on whether any one factor is necessary or sufficient to “determine”  the reckless indifference and major participant allegations of CC 703 — only tells half the story. This is so because it fails to tell the jury that any one factor may be — “by itself” — sufficient to leave the jurors with a reasonable doubt that the allegations have been proved by the prosecution.

The presumption of innocence by itself is sufficient to leave the jurors with a reasonable doubt. (See FORECITE F 100.1 Inst 1.) Similarly, a lack of evidence or conflict in the evidence may also be a basis for finding the defendant not guilty. (See e.g., People v. Hill (98) 17 C4th 800, 831 […[T]o the extent [the DA] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence]; see also FORECITE F 103.3 Inst 2; F 103.3 Inst 5.) It follows, a fortiori, that any single defensive fact may alone be sufficient for the jurors to have a reasonable doubt.

 

In other words, the presumption of innocence logically permits the jury to rely entirely upon a single defense theory to generate a reasonable doubt. (People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; see also e.g., CC 350; CJ 2.40.)

 

Accordingly, CC 703 should be modified to state the basic rule that a reasonable doubt as to the major participant and/or reckless indifference allegations can be entirely upon any one of the factors listed in CC 703.

 

          Sample Instructions: Modify the following paragraphs in CC 703 to read as follows [added language is highlighted]:

 

When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of these following factors is necessary nor is any one of them necessarily enough, to determine whether the defendant was a major participant. However, any one of the above factors may be sufficient, by itself, to leave you with a reasonable that defendant acted with reckless indifference to human life. Among the factors you may consider are:

 

*****

 

When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary nor is any one of them necessarily enough, to determine whether the defendant was a major participant. However, any one of the above factors may be sufficient, by itself, to leave you with a reasonable that defendant was a major participant. Among the factors you may consider are:

SB 1437, Which Amended the Natural and Probable Consequences Doctrine as It Relates to Murder, Bars a Conviction for Second Degree Murder Under That Theory

When an accomplice aids and abets a crime, the accomplice is culpable for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Natural and probable consequences liability can be imposed even if the accomplice did not intend the additional offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)  In People v. Chiu (2014) 59 Cal.4th 155 the CSC held that natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with “reasonable concepts of culpability.” (Id. at p. 165; see id. at p. 166.)

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) after determining that there was further “need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b).) Among other things, Senate Bill 1437 amended PC 188 to provide that “[e]xcept as stated in subdivision (e) of Section 189 [governing felony murder], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” In People v. Gentile (Dec. 17, 2020, S256698) the CSC was asked to decide the effect of this amendment on the natural and probable consequences doctrine as it applies to second degree murder.

The Court concluded that SB 1437 bars a conviction for second degree murder under the natural and probable consequences theory. It also held that the procedure set forth in section PC 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal.

Note: Because the issue was not presented on direct appeal in Gentile, the court did not decide whether denial of a section 1170.95 petition on the basis of facts not found by a jury would run afoul of Apprendi v. New Jersey (2000) 530 U.S. 466, 490. The court also expressed no view on the questions regarding the section 1170.95 process that are before the court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted 3/18/2020 (S260598/B295998).]

Defendants whose cases are pending on appeal may seek to stay their appeals in order to pursue relief under SB 1437. In response to an argument that the court’s reading of SB 1437 will lead to unnecessary delay if defendants await resolution of their direct appeals before filing a section 1170.95 petition, the court noted that “nothing prevents defendants from seeking to stay their direct appeals in order to pursue relief under Senate Bill 1437.” While a notice of appeal vests jurisdiction in the appellate court until determination of the case and issuance of the remittitur, a defendant whose case is pending on appeal may file a motion requesting a stay of the appeal and a limited remand for the purpose of pursuing section 1170.95 relief. “An appellate court may grant such a stay and limited remand where good cause supports the motion.”

 

California Supreme Court Decides SB 1437 Case—People v. Gentile

On Thursday December 17, 2020, the California Supreme Court issued its opinion in People v. Gentile (2020) ___Cal.5th___ (S256698), which presented the following issues: (1) Does the amendment to Penal Code section 188 by recently enacted Senate Bill No. 1437 eliminate second degree murder liability under the natural and probable consequences doctrine? (2) Was it prejudicial error to instruct the jury in this case on natural and probable consequences as a theory of murder? (3) Does Senate Bill No. 1437 apply retroactively to cases not yet final on appeal?

The Gentile opinion is available on the court’s website (https://www.courts.ca.gov/opinions/documents/S256698.PDF) and CCAP’s case summary for the opinion is below.

Case Name: People v. Gentile , CalSup , Case #: S256698
Opinion Date: 12/17/2020
Opinion By: Justice Liu (unanimous decision)
Case Holding:
Senate Bill No. 1437, which amended the natural and probable consequences doctrine as it relates to murder, bars a conviction for second degree murder under that theory. Gentile was convicted of first degree murder for the beating death of Saavedra. The Court of Appeal reversed his murder conviction after finding that the natural and probable consequences jury instruction for first degree murder violated People v. Chiu (2014) 59 Cal.4th 155. On remand, the prosecution accepted a reduction to second degree murder. During his second appeal, Gentile argued that SB 1437, which amended the Penal Code to modify accomplice liability for murder and the felony murder rule effective January 1, 2019, applied retroactively to his conviction. The Court of Appeal ultimately affirmed, concluding Gentile was a direct or active aider and abettor of murder. The California Supreme Court granted review. Held: Reversed and remanded. Under the natural and probable consequences doctrine, if a person aided and abetted a nonhomicide offense (e.g., an assault), but an unintended murder resulted, that person could be found guilty of the murder if it was a natural and probable consequence of the intended offense. Murder liability under the natural and probable consequences is vicarious in nature and, before SB 1437, it did not matter whether the accomplice harbored malice aforethought. After the amendments to section 188, except for felony murder, subdivision (a)(3) makes personally possessing malice aforethought a necessary element of murder. It makes no exception for accomplices or second degree murder. The legislative findings as well as the text of SB 1437 reflect that the Legislature intended to restrict culpability for murder outside the felony murder rule to defendants who personally possess malice aforethought. “The most natural meaning of [section 188, subd. (a)(3)], construed in the context of Senate Bill 1437 as a whole and in the context of the Penal Code, bars a conviction for first or second degree murder under a natural and probable consequences theory.” [Editor’s Note: The court noted that (1) “notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life”; and (2) “[i]n other cases involving conduct resulting in a victim’s death, a murder prosecution can proceed under the ‘substantial factor’ causation doctrine or the felony murder rule. (See, e.g., People v. Jennings (2010) 50 Cal.4th 616, 643; People v. Chun (2009) 45Cal.4th 1172, 1182.)”]

The procedure for resentencing in Penal Code section 1170.95, is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply retroactively to cases on direct appeal. Gentile argued that under In re Estrada (1965) 63 Cal.2d 740, the amendments SB 1437 made to sections 188 and 189 should apply retroactively to cases on direct review. The Supreme Court disagreed. Generally, new legislation lessening criminal punishment or reducing criminal liability presumptively applies to all nonfinal cases. (In re Estrada, supra, 63 Cal.2d 740.) However, SB 1437 provides a procedure for defendants with eligible murder convictions to petition to have their convictions vacated through the trial court. (Pen. Code, § 1170.95.) After analyzing SB 1437 and relevant case law, the court concluded SB 1437 does not apply retroactively to cases on appeal because: (1) the Legislature crafted a specific mechanism for seeking retroactive relief that does not distinguish between persons whose sentences are final and those whose sentences are not; and (2) section 1170.95 does not automatically provide all defendants with a right to relief. Instead, section 1170.95, subdivisions (c) and (d) require the trial court to assess the defendant’s eligibility for and entitlement to relief through a petition and hearing process in which the prosecution and the petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” Thus, the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal, but must be sought via a petition filed in the trial court. [Editor’s Note: Because the issue was not presented in this direct appeal, the court did not decide whether denial of a section 1170.95 petition on the basis of facts not found by a jury would run afoul of Apprendi v. New Jersey (2000) 530 U.S. 466, 490. The court also expressed no view on the questions regarding the section 1170.95 process that are before the court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted 3/18/2020 (S260598/B295998).]

Defendants whose cases are pending on appeal may seek to stay their appeals in order to pursue relief under SB 1437. In response to an argument that the court’s reading of SB 1437 will lead to unnecessary delay if defendants await resolution of their direct appeals before filing a section 1170.95 petition, the court noted that “nothing prevents defendants from seeking to stay their direct appeals in order to pursue relief under Senate Bill 1437.” While a notice of appeal vests jurisdiction in the appellate court until determination of the case and issuance of the remittitur, a defendant whose case is pending on appeal may file a motion requesting a stay of the appeal and a limited remand for the purpose of pursuing section 1170.95 relief. “An appellate court may grant such a stay and limited remand where good cause supports the motion.”

Gentile must proceed under Penal Code section 1170.95 in order to obtain relief from his second degree murder conviction. The parties agreed that Gentile has made a prima facie showing that he is entitled to relief (Pen. Code, §1170.95, subd. (c)) “in light of the Attorney General’s concessions and the Court of Appeal’s determination in Gentile I [People v. Gentile (Feb. 27, 2017, E064822) [nonpub. opn.]] that it is ‘probable’ the jury relied on a natural and probable consequences theory in finding him guilty of murder. In their section 1170.95 briefing, the parties are free to litigate what bearing, if any, doctrines of estoppel or preclusion may have in light of those prior concessions and the Court of Appeal’s determination in Gentile I. ” The Supreme Court remanded the matter to the Court of Appeal to affirm Gentile’s second degree murder conviction without prejudice to any petition for relief that Gentile may file under section 1170.95.

Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.)

“[T]he culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.’ ” [Citation] This mental state thus requires the defendant be “subjectively aware that his or her participation in the felony involved a grave risk of death.” [Citation], People v. Mil (2012) 53 Cal.4th 400, 417; italics by Mil court; see also People v. Banks (2015) 61 Cal.4th 788, 807 [“Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a “grave risk of death” satisfies the constitutional minimum. [Citation]”].)

CC 540B, CC 540C and CC 703 define reckless indifference as follows:

A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.

Thus, to “act with” reckless indifference requires that the defendant form two discrete knowledge elements before he or she engaged in the criminal activity which created a grave risk of death.

 

Moreover, it is a “fundamental doctrine of criminal law” that in every crime there must be a concurrence of act and intent. (PC 20; People v. Green (1980) 27 C3d 1, 53.) “The scienter for any crime is inextricably linked to the proscribed act or omission. [Citation to PC 20].” (People v. Sargent (1999) 19 C4th 1206, 1222.) “So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.” (fn. omitted) (People v. Vogel (1956) 46 C2d 798, 801; see also Green at 53.)

 

Concurrence of act and intent is an element of the felony murder special circumstance for two reasons. First, as discussed above the statute expressly requires such an element by requiring that the defendant “act with” reckless indifference. Second, even if characterized as a sentencing enhancement all necessary elements must still be found by the jury. (Apprendi v. New Jersey (2000) 530 US 466.) Third, not only does the special circumstance enhance the defendant’s sentencing exposure, if found true it makes the defendant death-eligible which also requires a jury finding as to each element of the allegation. (Ring v. Arizona (2002) 536 U.S. 584, 609.)

 

CAVEAT. The jurors are not necessarily precluded from considering post-killing evidence regarding the defendant’s pre-killing mental state. However, post-killing knowledge is not a substitute for the required pre-act knowledge.

See Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime

Sample Instruction 1 [CC 3400 adaption]:

To find that the acted with reckless disregard for human life you must conclude that the prosecution has proved the following beyond a reasonable doubt:

 

  1. The defendant engaged in criminal activity;

 

  1. When he/she engaged in the criminal activity the defendant;

 

  1. Knew it was criminal

 

and

 

  1. Knew it involved a grave risk of death.

 

The defendant contends that he/she did not have either or both of the above knowledge elements before or during his alleged commission of criminal activity involving a grave risk of death.

 

If you have a reasonable doubt, or cannot decide whether you have a reasonable doubt, that the defendant formed both of the above knowledge elements, you must find that the special circumstantial allegation is untrue.

 

 

 

Sample Instruction 2 [CC 3400 adaption]:

Before you return a true verdict on the felony murder special circumstance one element you must find is that the defendant knowingly

The defendant contends that he/she did not know that his acts involved a grave risk of death before or during his commission of those acts.

Defendant does not need to prove this contention. The prosecution must disprove it beyond a reasonable doubt. If [the prosecution has failed to meet this burden] [you have a reasonable doubt or cannot decide whether you have a reasonable doubt that defendant knew his acts involved a grave risk of death prior or during the commission of those acts,] you must find the special circumstance allegation to be untrue.

Sample Instruction 3:

The prosecution has the burden of proving beyond a reasonable doubt that the defendant knew his/her [alleged] acts involved a grave risk of death when he committed those [alleged] acts. If you conclude that the prosecution has failed meet this burden, or you are uncertain that they have done so, you must find the special circumstance allegation to be untrue.

Sample 4 [re: post killing acts (In re Taylor (2019) 34 Cal. App. 5th 543, 546-47)]:

Evidence of a defendant’s actions after the murder which the prosecution alleges as evidence of the defendant’s indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death.

Felony Murder Special Circumstance: Reckless Indifference — Consciousness of Guilt Not Alone Sufficient to Prove Guilt or Supply Missing Elements

CC 703 invites the jurors to consider the defendant’s actions after the crime in determining the “reckless indifference” by telling the jurors that they may consider the following specific factor: “Did the defendant have an opportunity … to help the victim(s)?”

However, the defendant’s post-crime actions are not alone sufficient to prove reckless indifference. “…[A] defendant’s actions after a murder betraying an indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death.”  [Emphasis original.] Defendant made no attempt to render aid to the victim his co-defendant had shot, and the next day made an offensively callous remark about the victim.   “Because there is no other evidence that Taylor had such an intent when he participated in the attempted robbery, we grant his petition to vacate the special circumstance.” (In re Taylor (2019) 34 Cal. App. 5th 543, 546-47.) See also Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime

Therefore, as with other situations where a category of evidence is not alone sufficient (e.g, flight, recent possession of stolen property, etc.), a cautionary instruction may be appropriate. The California Supreme Court has repeatedly approved instructions which admonish the jury that specific forms of consciousness of guilt, such as flight, false statements, destruction of evidence, etc., are not alone sufficient to prove guilt. (See e.g., People v. Holloway (2004) 33 C4th 96, 142; see also People v. Jenkins (1979) 91 CA3d 579 [evidence of falsehoods, attempts to fabricate evidence, and efforts to suppress evidence are, in themselves, sufficient to establish guilt].) Similarly, the legislature and CALCRIM instructions provide for such cautionary language. (See e.g., PC 1127c; CALCRIM 362, CC 371, CC 373.)

 

Sample Instruction [CC 376 format]:

 

If you conclude that the defendant [insert alleged post-crime actions of defendant, e.g., fled after the crime; failed to render assistance to [the victim] [________[insert name of victim], you may not find that the defendant acted with reckless indifference to human life based on [those facts] [that fact] alone. You may also consider any other evidence but remember that you may not find that the defendant acted with reckless indifference to human life, that is, the defendant knowingly created a grave risk of death, unless you are convinced that each fact essential to that conclusion has been proved beyond a reasonable doubt.

 

Sample Instruction [CC 362, CC 371, CC 373 format]:

 

If you conclude that the defendant [insert alleged post-crime actions of defendant, e.g., fled after the crime; failed to render assistance to [the victim] [________[insert name of victim], it is up to you to decide its meaning and importance. However, such evidence cannot prove reckless indifference to human life, that is, awareness of a grave risk of death, by itself.

CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony

CC 202 instructs the jurors as follows:

 

If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you.

 

This language is too limited because jurors should have the ability to request readback of testimony even if there isn’t an “actual disagreement about the testimony.” (Compare CC 104 [“If you decide that it is necessary, you may ask

that the (court reporter’s record be read to/court’s recording be played

for) you.”] CC 222 [same].)

 

It is true that the governing statute PC 1138 “indicates that a “disagreement” among the jurors is a prerequisite to the right provided by the statute, jurors have the right to have testimony read to them even without a showing of disagreement. [Citation to People v. Butler (1975) 47 Cal.App.3d 273, 280].” (People v. Triplett (2020) 48 Cal App 5th 655, 660.)

 

A jury cannot properly fulfill its constitutionally mandated role as fact finder if it cannot recall or is confused about the testimony presented in a case. Thus, in order to assist the jury in completing its fact-finding mission, trial courts should apply a liberal construction to a jury’s request for transcripts. (Id. at 662.)

 

Accordingly, the above language of CC 202 should be modified to comport with CC 222 or replaced with one of the sample instructions below.

 

NOTE: The pre-deliberation instructions do not refer to the jurors’ ability to request a readback of testimony.

 

Sample Instruction 1

 

If, during deliberations, any of you have a question about any part of the testimony or desire information upon any point of law in the case, you may send out a note making this request.

[See MINNESOTA JURY INSTRUCTION GUIDES – CRIMINAL, CRIMJIG § 3.08 [Jury May Return For Information] (West, 4th ed. 1999)].]

Sample Instruction 2

 

At the end of the trial, and during your deliberations, you will not have a written transcript of the testimony to consult. You will have the opportunity to request a readback of testimony about which you have a question, but it will be difficult and time consuming for the reporter to readback large portions of the trial. Therefore, you should pay careful attention to the testimony as you hear it and take such notes as you desire without interfering with your ability to pay close attention to the testimony.

 

Sample Instruction 3

Should you deem it helpful to do so, you may make the following requests at any time during your deliberations:

  1. For a written copy of the jury instructions to be sent into the juryroom;
  2. For the exhibits to be sent into the juryroom;
  3. For a read back of testimony or arguments of counsel;
  4. For clarification or amplification of the instructions.

Should you desire to make any of these requests, or should it otherwise become necessary during your deliberations to communicate with the court, you may send a note by a bailiff, signed by your foreperson, or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed note; and the court will never communicate with any member of the jury on any subject touching on the merits of the case, otherwise than in writing, or orally in open court.

You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person, other than by request of the court, how the jury stands numerically or otherwise as to whether or not guilt has been proven beyond a reasonable doubt until after you have reached a unanimous verdict.

PG XI(D)(3) CALCRIM Instructions Listing Specific Factors for Juror Consideration.

It is appropriate to instruct the jurors on specific factors relevant to a given factual issue. (See e.g., People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors]; People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; U.S. v. Pierra (9th Cir. 2001) 254 F3d 872 [same]; see also FORECITE F 315.1.2 Inst 2.)

Moreover, lists of factors for the jurors’ consideration are included in a number of the standard CALCRIM instructions. (See list below.)

However, when the jurors are instructed using a list format it may be appropriate to supplement the standard instruction with various clarifying, limiting, and/or cautionary instructions  (See e.g., FORECITE F 105.2 Inst 2  and F 105 Note 1.

The following CALCRIM instructions include multiple specific factors for juror consideration:

CC 105/CC 226 Witnesses

“Among the factors you may consider are….”

 

  1. Eyewitness Identification

“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions….”

 

CC 330 Testimony of Child 10 Years of Age or Younger

“In evaluating the child’s testimony, you should consider all of the factors”

 

CC 331 Testimony of Person With Developmental, Cognitive, or Mental Disability

In evaluating the testimony of a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment), consider all of the factors surrounding that person’s testimony, including his or her level of cognitive development.

 

CC 332 Expert Witness Testimony

“… consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.”

 

CC 441, CC 442 Solicitation

“If you find the defendant guilty of solicitation, you must decide how many crimes (he/she) solicited. When deciding this question, consider the following factors….”

 

CC 540B Felony Murder: First Degree [Reckless Indifference]

[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are ….”

 

CC 540B Felony Murder: First Degree [Major Participant]

[When you decide whether the defendant was a major participant, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are…”

CC 549 DELETED & replaced with Bench Note in CC 540 re: “one continuous transaction” [“In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: . . .”]

CC 590 Gross Vehicular Manslaughter While Intoxicated

The combination of driving a vehicle while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant’s conduct.

 

CC 703. Special Circumstances [Reckless Indifference]

[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life.

Among the factors you may consider are….”

 

CC 703. Special Circumstances [Major Participant]

[When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are….”

 

  1. Second Degree Murder With Prior Prison for Murder

The factors for the jury to consider under PC 190.05(e) are identical to the factors to be considered in a death penalty trial. Thus, the court needs to change only the penalties that the jury must choose between.

 

CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating

“Under the law, you must consider, weigh, and be guided by specific factors, where applicable, some of which may be aggravating and some of which may be mitigating. I will read you the entire list of factors. Some of them may not apply to this case. If you find there is no evidence of a factor, then you should disregard that factor. [para] The factors are….”

 

CC 766. Death Penalty: Weighing Process

“In reaching your decision, you must consider, take into account, and be guided by the aggravating and mitigating circumstances. Each of you is free to assign whatever moral or sympathetic value you find appropriate to each individual factor and to all of them together. Do not simply count the number of aggravating and mitigating factors and decide based on the higher number alone. Consider the relative or combined weight of the factors and evaluate them in terms of their relative convincing force on the question of punishment..”

 

CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition/ CC 852 Domestic Violence/ CC 2701 Violation of Court Order/ CC 3163 Great Bodily Injury: Domestic Violence

“Factors that may determine whether people are cohabiting include, but are not limited to, (1) . . ., (2) . . ., (3) . . ., (4) . . ., (5) . . .,”

 

CC 1156 Loitering: For Prostitution

“In deciding whether the defendant acted with intent to commit prostitution, you may consider whether (he/she)….”

CC 1201 Kidnapping: Child or Person Incapable of Consent/ CC 1215 Kidnapping

“…consider other factors such as….”

 

CC 1243 Human Trafficking/ CC 1244 Causing Minor to Engage in Commercial Sex Act/ CC 3184 Sex Offenses: Sentencing Factors/ CC 3414 Coercion

“When you decide whether the other person (used duress/ [or] used coercion/ [or] deprived the defendant of personal liberty or violated the defendant’s personal liberty), consider all of the circumstances, including the age of the defendant, (his/her) relationship to the other person [or the other person’s agent[s]], and the defendant’s handicap or disability, if any.”

 

CC 1300 Criminal Threat

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances.

CC 2840 [failure to file tax return is a factor to consider]/ CC 2842/CC 2843 [another factor to consider re: unreported taxable income.]

CC 2980 Contributing to Delinquency of Minor

“The manner in which a less serious injury, if any, was inflicted, any history of repeated infliction of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian may be relevant to whether the child is at substantial risk of serious physical harm.] [para] The following factors may bear on such a determination:….”

 

  1. Collective or Cooperative Cultivation Defense

In deciding whether a collective meets these legal requirements, consider the following factors….”

The Most Important “Non-Critical” Part of A Trial

In its September 2020 revisions the CALCRIM committee modified CC 202 to provide as follows (added language is highlighted):

 

If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you. It is the record that must guide your deliberations, not your notes. You must accept the (court reporter’s record /court’s recording) as accurate. Do not ask the court reporter questions during the readback and do not discuss the case in the presence of the court reporter.

 

[CC 104 which also addresses reading back testimony to the jurors was not similarly modified. The subject of readback is only addressed in these two pretrial instructions. It is not discussed in any of the pre-deliberation instructions.]

 

This revision apparently seeks to avoid potential problems from the common practice of allowing unsupervised, closed-door readback of testimony to the jurors by the reporter. However, by implicitly endorsing such unsupervised readback proceedings the new instruction does more harm than good. The reason why counsel should never agree to an unsupervised readback is graphically illustrated by what happened in People v. Aikens (N.Y. Sup. Ct. 1983) 119 Misc. 2d 1085:

At the trial it was shown … the defendant sold a quantity of heroin to … an undercover officer. Police records set forth a description given by[the officer] of the appearance of the defendant at the time of the sale. The defense then attempted to bring out discrepancies between the description and the actual appearance of the defendant at the time of the sale. One of the key discrepancies was the defendant’s missing front teeth and the lack of reference to teeth in any description. Both counsel argued this point in their summations.

The relevant portion of the minutes of the cross-examination of [the officer] read as follows:

“Q Now, I ask you, does Mr. Aikens look essentially the same now as he did on June 2nd?

“A Essentially the same with the exception of his feet.” (Emphasis in original.)

The jury requested this testimony be read back and a verdict was rendered. Following the reading of the verdict and discharge of the jury, with the court’s permission both counsel entered the jury room to speak to the jury members. At this point the error in the readback was noted by defendant’s counsel… the word “feet” was misread to the jury and the word “teeth” was substituted. The word “feet” [was] the correct rendition of the testimony at the trial [and a new trial was ordered].

What happened in Aikens can (and likely has) happened other cases. One of the more common requests from a deliberating jury is for a readback of testimony that the jurors presumably consider to be important. In light of cases like Aikens and as a matter of common sense, it seems reasonable to assume that the proceeding during which testimony is read back to the jurors is an important, indeed critical, phase of the of the trial. Thus, it seems inadvisable, at best, to conduct unsupervised in camera readback of testimony to the jurors.

 

Yet, that is often exactly what happens, and the CSC has no problem with it. (See e.g.  People v. Covarrubias (2016) 1 Cal.5th 838, 916-918; People v. Lucas (2014) 60 Cal.4th 153, 300-301.

 

It is, of course, understandable that busy attorneys do not want to “waste their time” sitting through a lengthy readback that everybody assumes will simply repeat testimony that has already been presented in court. But for an attorney representing a criminal defendant whose liberty is at stake, assumptions are to be avoided. (Of course, the word ASSUME has a well-known cautionary acronym which will not be repeated here.)

 

But in all seriousness, there is no guarantee that an unsupervised readback will not result in some sort of prejudice to one’s client. There are so many things that can go wrong if no one is present other than the reporter and jurors notwithstanding CC’s recent effort to curtail potential problems via a jury instruction. As recognized by one federal court, the presence of counsel during the readback is crucial:

We think sending the court reporter to read to the jury the testimony of Officers Smith and Woody implicated appellant’s rights more than the “ministerial” action of transmitting exhibits in Quarles. An inadvertent omission of a part of this testimony, a mistake in the reading of a shorthand symbol or an inappropriate emphasis of voice could have occurred. The situation here, however, was ameliorated by the presence of the two defense counsel and the prosecutor who had heard the original testimony and listened to its being read back to the jury.

          (Harris v. United States (D.C. 1985) 489 A.2d 464, 468.)

Nor can it simply be presumed that no error occurred during the readback of a transcript. As Aikens so well illustrates the transcript itself may contain errors.

 

Moreover, even if the transcript is correct it is not an easy task to read aloud perfectly from a written document even when the reader is doing their best to be accurate. For example, errors made by trial judges when reading written instructions aloud to the jurors are so common that the California Supreme Court recommends that jury be provided written instructions in capital cases “to cure the inadvertent errors that may occur when the instructions are read aloud. (See People v. Seaton (2001) 26 Cal.4th 598, 673.) And, reviewing courts have long abided by a special standard of review in reviewing the plethora of such errors. (See People v. Edwards (2013) 57 Cal.4th 658, 746 [if discrepancy between written and oral versions of jury instructions, written instructions provided to jury control]; People v. Mills (2010) 48 Cal 4th 158, 200-201[same]; People v. Wilson (2008) 44 Cal.4th 758, 803 [same]; People v. Davis (1995) 10 Cal.4th 463, 542 [same]; People v. Crittenden (1994) 9 Cal.4th 83, 138; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)

In sum, just as [t]he risk of a discrepancy between the orally delivered and the written instructions exists in every trial… (People v. Mills, supra.) the risk of discrepancy during an unsupervised readback of testimony exists in every trial.

Furthermore, the risks associated with readback proceedings are not limited only to errors in the transcript or errors in reading the transcript aloud:

. . . [A] mistake in the reading of a shorthand symbol which defense counsel would instantly detect, an unconscious or deliberate emphasis or lack of it, an innocent attempt to explain the meaning of a word or a phrase, and many other events which might readily occur, would result in irremediable prejudice to defendant.  (Little v. U.S. (10th Cir. 1934) 73 F.2d 861, 864.)

 

Even when the evidence requested by the jury is a tape recording which can be mechanically replayed, the proceeding is still considered an important part of the trial “because it involves the crucial jury function of reviewing the evidence” (U.S. v. Ku Pau (9th Cir. 1986) 781 F.2d 74, 743.) [Even though Ku Pau analyzed the issue under Fed. Rule of Criminal Proc. 43, the reasoning also applies to the constitutional bases for the right to presence.] Similarly, the absence of the defendant from the replaying of a tape of the jury instructions has been held to violate a defendant’s right to due process and confrontation.  (Bustamante v. Eyeman, supra, 456 F.2d 269, 271.)

CC 330: “Should Consider” vs. “Consider”

CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old.

 

Compare Paragraph 2:

 

In evaluating the child’s testimony, you should consider all of the factors

surrounding that testimony, including the child’s age and level of

cognitive development. [Emphasis added.]

 

with Paragraph 3:

 

When you evaluate the child’s cognitive development, consider the

child’s ability to perceive, understand, remember, and communicate. [Emphasis added.]

 

The admonition in Paragraph 2 should be changed from “should consider” to “consider” because the word “should” implies something less than a mandatory obligation to consider the listed factors. Jurors should not be given any leeway to ignore any evidence without at least considering it. See Jury Instructions Should not Permit Jurors to Reject Defense Evidence Without Considering It
Of Testimony and F 4.21e Voluntary Intoxication: Jury “Must” Consider see also F105.2 Inst 1 (a & b) Improper To Imply A Defense Obligation To “Disprove” The Truth Or Accuracy Of Testimony 

 

Accordingly, the CALCRIM instructions typically admonish the jurors to “consider” relevant factors and circumstances. (See, e.g., CC 103 [“… consider all the evidence that was received throughout the entire trial”]; CC 105 [“Consider the testimony of each witness …”]; CC 240 [“In deciding whether a consequence is natural or probably, consider all the circumstances …”]; CC 315 [“In evaluating identification testimony, consider the following questions: . . .”]; CC 330 [“When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate”]; CC 375 [“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s]”]; CC 571 [“In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant”]; CALCRIM 590 [“In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence”].)

 

Sample Instruction, modify CC 330 Paragraph 2 to provide as follows:

 

In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development.