All posts by Julie Anne Ines

Does Defendant’s Temporary Refusal to Attend Trial Justify A Consciousness of Guilt Instruction?

In People v. Gomez (2018) 6 Cal.5th 243, 283 the defendant briefly refused to leave his jail cell and attend trial before the deputy sheriff advised him that an extraction order had been issued by the judge.  Defendant’s disobedience resulted in a 38-minute delay in the proceedings.

At the conclusion of the trial, the judge gave the following instruction to the jury: “If you find that the defendant Gomez voluntarily absented himself from this trial by refusing to come to court, you may consider that as a circumstance tending to prove a consciousness of guilt. That conduct, however, is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” (Id. at 286.)

The CSC held that the evidence did not support an inference of consciousness of guilt because it only suggested that defendant intended to temporarily disrupt the proceedings.  Therefore, “the trial court’s decision to admit evidence regarding [defendant’s] refusal to attend court and its jury instruction on consciousness of guilt violated [his] constitutional rights to due process.” (People v. Gomez (2018) 6 Cal.5th 243, 290.)

Compare FORECITE F 2.009a re: sample cautionary instructions regarding defendant’s absence from trial.

Conviction of Armed Robbery at Guilt Trial Is Relevant to Death Penalty Sentencing Under Factor (a), Not (b)

Defendant’s capital trial included a charge for an armed robbery he committed with a group of men five days before the capital murder, and defendant was convicted of that robbery.  The jury was properly instructed to consider that robbery under Penal Code section 190.3, factor (b), other violent criminal activity, instead of factor (a), the circumstances of the capital crime.  (See People v. Spencer (2018) 5 Cal.5th 642, 691.)

Limiting Ability of Penalty Phase Jurors to Consider Consciousness of Guilt As Non-Statutory Aggravation

When consciousness of guilt evidence is admitted at the guilt trial of a death penalty trial that evidence may include “ ‘aggravating evidence of a type not statutorily authorized.’ [Citation.]” (People v. Anderson (2018) 5 Cal.5th 372, 393.) For example, consciousness of guilt may be interpreted by the jurors “as evidence of bad character, and thus as aggravating evidence of a type not statutorily authorized.” (People v. Champion (1995) 9 Cal.4th 879, 947.)


In such a situation counsel may wish to consider requesting a limiting instruction:


“”If defendants had requested the trial court to instruct the jury that it could consider this evidence only for the light it shed on defendants’ guilt, such an instruction would perhaps have been appropriate. Defendants, however, did not request such an instruction” People v. Anderson, supra, 5 Cal.5th at 393.)

Aggravating Circumstances: Report of Rumors Is Not Evidence of “Solid Value”

In People v. Penunuri (2018) 5 Cal.5th 126, 168-169 the judge erred in allowing evidence of other violent criminal activity under Penal Code section 190.3, factor (b), concerning a nonfatal shooting that was committed two months before the capital murders because there was insufficient evidence that defendant “committed that assault” and “[t]here was no direct evidence linking him to the crime.”  The only evidence suggesting that defendant was involved was that the car involved “was registered to someone at an address shared with a gang confederate and codefendant” and that the word “‘on the street’” was that defendant was the shooter.  Although there was some dispute whether a witness had heard one of the victims identify defendant as the shooter, the witness denied that his “identification was based on his personal knowledge.”  A “report of rumors…is not evidence ‘that is reasonable, credible, and of solid value’ sufficient to support a jury finding beyond a reasonable doubt that [defendant] committed the assault.”  Thus, the trial court should not have allowed the jury to consider the shooting.

Competency of Defendant Must Focus on the Defendant’s Present Abilities, As Opposed to the Possibility That the Relevant Abilities May Be Restored in the Future

Under both the federal due process clause as interpreted by Dusky v. United States (1960) 362 U.S. 40, and Penal Code section 1367, a finding of incompetency does “not require a specific medical diagnosis drawn from the current version of the Diagnostic and Statistical Manual of Mental Disorders, [or] that the defendant’s mental disorder fit neatly within the standard diagnostic taxonomy.” (People v. Buenrostro (2018) 6 Cal.5th 367, 389-90.)  Further, the issue of whether defendant is able to understand the nature of the proceedings involves an assessment of defendant’s “‘capacity to have a rational and factual understanding of the proceedings…,’” and both prongs of the competency inquiry, including defendant’s ability to assist counsel, “focus[] on the defendant’s present abilities, as opposed to the possibility that the relevant abilities may be restored in the future.” (Id. at 391.)

Merger Doctrine Not Applicable to First Degree Felony Murder

In People v. Ireland (1969) 70 Cal.2d 522 the CSC held that “the crime of assault with a deadly weapon cannot be used as the sole predicate crime for a second degree felony-murder conviction because, when a firearm is used in a killing, such an assault is “an integral part of the homicide.” In People v. Powell (2018) 5 Cal.5th 921, 941-42 the defendant contended that the Ireland holding — which has come to be known as the “merger doctrine” — should preclude a verdict of first degree murder in the course of the crimes of mayhem or torture because the commission of these crimes was an integral part of his heat of passion killing.

The CSC rejected this contention.

In two post-Ireland decisions the merger doctrine was extended to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underlying the burglary was the assault that led to the homicide. (People v. Sears (1970) 2 Cal.3d 180, 188-189 and People v. Wilson (1969) 1 Cal.3d 431, 440 [precluding application of the felony-murder rule when “the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide”].) Although second degree felony murder is grounded in an interpretation of PC 188, no statute specifically addresses second degree felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1182-1183.) In contrast, first degree felony murder, along with the predicate crimes underlying it, is expressly described in PC 189. Citing this distinction, People v. Farley (2009) 46 Cal.4th 1053 reconsidered and disapproved the extension of the merger doctrine to first degree felony murder.

Accordingly, the merger doctrine is inapplicable to first degree murder including torture murder and murder during the commission of mayhem. (People v. Powell, supra, at 942-43.)

Judge Has Sua Sponte Duty to Instruct on Lesser Offense of Involuntary Manslaughter Based on Commission of Inherently Dangerous Assaultive Felony

The court has a sua sponte duty to instruct on involuntary manslaughter based on the commission of an inherently dangerous assaultive felony and to instruct on the elements of the predicate offense(s). (People v. Brothers (2015) 236 Cal.App.4th 24, 33–34; see also People v. Bryant (2013) 56 Cal.4th 959, 964.)


Jury instructions “are not themselves the law,” “are not authority to establish legal propositions or precedent,” and “should not be cited as authority for legal principles in appellate opinions. [Citation] “At most, when they are accurate , … they restate the law.” ([citation], italics added by Montoyo court.) (People v. Montoya (2021) 68 Cal.App.5th 980, 999-1000.)

For example, in People v. Burgess (2021) 60 Cal.App.5th 885, 893 the defendant maintained that his PC 29815 conviction must be reversed because no evidence showed his firearm restriction probation condition was ordered by a court. He pointed to the language in two jury instructions, CALCRIM Nos. 2512 and 3500, the first stating the jury must find a court ordered the firearm restriction and the second stating that his charge was “possession of a firearm by a person prohibited by a court order.” From these, Burgess argued that an essential element of the offense—a court-ordered firearms restriction probation condition—had not been met.

The reviewing court rejected the defense contention because CALCRIM is “not the law….” (Ibid.) “Because the instructions are not binding, whatever the Judicial Council intended by them does not affect our analysis. [Citation]” People v. Burgess (2021) 60 Cal.App.5th 885, 893

See also PG I(B) – Duty of Court to Go Beyond the Standard Pattern Instructions


CALCRIM Is Not the Law June 3rd, 2021

Justice Liu Again Calls for the CSC to Revisit the Question of Whether PC 190.3 Factor(b) Violates Apprendi

The Due Process Clause of the federal constitution (Fifth and Fourteenth Amendments) protect the accused against conviction except upon proof beyond a reasonable doubt of every essential fact and element of the charge. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)


In People v. McDaniel (2021) 12 Cal.5th 97, 176, Justice Liu concluded that “the 20-year arc of the high court’s Sixth Amendment jurisprudence [since Apprendi] raises serious questions about the constitutionality of California’s death penalty scheme.” (Id. at p. 176 [“this court, as well as other responsible officials sworn to uphold the Constitution, [should] revisit this issue.”].)


See also Justice Liu Identifies Defect in California Death Penalty Process
October 20th, 2021


In People v. Pineda; S150509 (6/27/22), Justice Liu issued a concurring opinion which restated the concerns he expressed in McDaniel.