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Dissenting Opinion Cogently Explains Basis for Defense Requested Pinpoint Instructions

In People v. Ramirez (2019) 40 Cal.App.5th 305 the majority opinion concluded that the defendant’s request for pinpoint instructions related to voluntary manslaughter because one instruction was duplicative of CALCRIM No. 570 and another was argumentative. The dissenting opinion provides a good discussion of why the defense has the right to pinpoint instructions which “pinpoint the defendant’s theory of the case. The relevant portion of the dissenting opinion is as follows:

 

“Although I concur in the result on this issue and agree that ultimately appellant’s conviction should not be reversed because the trial court refused to give the requested pinpoint instructions, I write to set forth a different perspective on whether the trial court erred in so refusing.

 

Our Supreme Court has consistently held that in appropriate circumstances, a trial court ” ‘may be required to give a requested jury instruction that pinpoints a defense theory of the case.’ ” ( People v. Hartsch (2010) 49 Cal.4th 472, 500, 110 Cal.Rptr.3d 673, 232 P.3d 663.) Pinpoint instructions ” ‘ “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case.” ’ ” ( People v. Lujano (2017) 15 Cal.App.5th 187, 191, 223 Cal.Rptr.3d 105.) A proper instruction does not pinpoint evidence , it pinpoints the defendant’s theory of the case. ( People v. Ledesma (2006) 39 Cal.4th 641, 720, 47 Cal.Rptr.3d 326, 140 P.3d 657 ( Ledesma ).)

 

On request, “a criminal defendant is entitled to pinpoint instructions that relate particular facts to an element of the charged offense and highlight or explain a theory of the defense if the instructions are supported by substantial evidence.” ( People v. Nelson (2016) 1 Cal.5th 513, 542, 205 Cal.Rptr.3d 746, 376 P.3d 1178 ( Nelson ).) A pinpoint instruction must be given at a defendant’s request unless it “incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.” ( People v. Moon (2005) 37 Cal.4th 1, 30, 32 Cal.Rptr.3d 894, 117 P.3d 591 ; People v. Mora and Rangel (2018) 5 Cal.5th 442, 498, 235 Cal.Rptr.3d 92, 420 P.3d 902.)

 

“In determining whether the evidence is sufficient to warrant a jury instruction, the court does not determine the credibility of the defense evidence, but only whether there was evidence, if believed by the jury, sufficient to raise a reasonable doubt.” ( People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418, 174 Cal.Rptr.3d 547 ; People v. Salas (2006) 37 Cal.4th 967, 982, 38 Cal.Rptr.3d 624, 127 P.3d 40.)

 

Here, the trial court gave the jury the following instruction on voluntary manslaughter:

 

“A killing that would otherwise be a murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

 

“The defendant killed someone because of a sudden quarrel or in the heat of passion if:

 

“1. The defendant was provoked;

 

“2. As a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;

 

“AND

 

“3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

 

“Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

 

“In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted in the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

 

“A desire for revenge does not qualify as a passion which would reduce a murder to voluntary manslaughter.

 

“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.

 

“If enough time passed between the provocation and the killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.

 

“The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.”

 

Ramirez asked the court to also give the jury two pinpoint instructions on voluntary manslaughter. The first was, “[p]rovocation sufficient to reduce murder to voluntary manslaughter may accumulate over a period of time and may be based upon a series of acts.” Ramirez cited to the following authority to support his request: People v. Le (2007) 158 Cal.App.4th 516, 525, 69 Cal.Rptr.3d 831 ; People v. Wharton (1991) 53 Cal.3d 522, 569, 280 Cal.Rptr. 631, 809 P.2d 290 (Wharton ); People v. Berry (1976) 18 Cal.3d 509, 134 Cal.Rptr. 415, 556 P.2d 777 ; and People v. Borchers (1958) 50 Cal.2d 321, 325 P.2d 97. The second requested jury instruction was, “[a] defendant may witness potential acts of provocation and/or be informed of them afterwards.” Ramirez supported this instruction with citations to People v. Brooks (1986) 185 Cal.App.3d 687, 230 Cal.Rptr. 86 ( Brooks ) and People v. Berry.

 

The court agreed the requested pinpoint instructions were accurate statements of law, but denied both requests. The court told defendant he could argue these points to the jury, but declined to include the instructions because it felt the case was “just really at the border” of justifying the standard voluntary manslaughter instruction.

 

Ramirez argues this was error. The People do not argue the requested instructions were inaccurate statements of the law; rather, the trial court was not required to give them because they were duplicative and unhelpful to the jury.

 

The requested pinpoint instructions were simple, straightforward statements of law; there was no risk of them confusing the jury. Nor were they argumentative. An instruction is argumentative if it directs the jury to consider specific evidence. ( Ledesma , supra , 39 Cal.4th at p. 720, 47 Cal.Rptr.3d 326, 140 P.3d 657 ; Wharton , supra , 53 Cal.3d at p. 570, 280 Cal.Rptr. 631, 809 P.2d 290.) Ramirez’s requested instructions did not point to specific pieces of evidence in the record, they merely pinpointed the crux of Ramirez’s defense theory: that a series of provocative acts, some of which he witnessed and some of which he heard about, caused him to act in the heat of passion when he shot Zambrano. Interestingly, the trial court found no problem with and sua sponte gave a pinpoint instruction to support the People’s theory of prosecution: “A desire for revenge does not qualify as a passion which would reduce a murder to voluntary manslaughter.” I find Ramirez’s two proposed instructions were just as mildly phrased in explicating his theory of defense.

 

Nor were the instructions duplicative. Nothing in the standard instruction given to the jury addressed the question whether murder could be reduced to voluntary manslaughter if the defendant did not witness the provocation, but learned of it afterwards. Yet, this is the state of the law. (See Brooks , supra , 185 Cal.App.3d at p. 694, 230 Cal.Rptr. 86.)

 

With respect to the accumulation of provocative acts, the standard instruction indicates that provocation may occur over a long period of time, but it also states the provocation may not be remote or slight, and that the defendant must have acted in the direct and immediate influence of provocation. Ramirez’s theory was that a number of provocative acts, each one of which might not be sufficient on its own to cause a reasonable person to act in the heat of passion, can build upon one another to the point where a defendant may act rashly and without due deliberation or reflection. I conclude that instructing the jury in this way does not duplicate the standard instruction that provocation cannot be remote or slight and must have exerted a direct and immediate influence upon the defendant yet can also occur over a long period of time. In light of Ramirez’s theory of the case, it is not unreasonable to conclude it would be potentially difficult for a jury to reconcile these three concepts. Ramirez was therefore entitled to an instruction informing the jury that an accumulation of otherwise “slight” provocations, some of which might be remote and some of which occurred right before or at the time of the crime, could reduce murder to voluntary manslaughter if the jury believed the sequence of provocations would prompt a reasonable person to act in the heat of passion.

 

The requested instructions were supported by substantial evidence. Ramirez was not present when the victim punched Semidey; rather, he heard about this provocative act shortly after it occurred and it was definitely the event that provoked him, based on his statement “Who was the mother fucker who hit my brother, my friend?” Then he saw the victim continuing to be belligerent and disrespectful to the wedding guests when the second confrontation occurred and Zambrano and his group knocked Guzman to the ground. Ramirez also stated during his police interview that he heard some of the women at the reception had been hit by the person who caused the trouble. While these facts may not have been sufficient to provoke a reasonable person to act in the heat of passion without due deliberation and reflection, the weight to be given this evidence was within the province of the jury, not the trial court.”

 

People v. Ramirez (2019) 40 Cal.App.5th 305, 312-16, dis. opn. of Stratton, J.

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Death Penalty Aggravation: Jury Properly Instructed to Consider Prior Robbery Under Factor (B) Instead of Factor (A)

The capital trial in People v. Spencer (2018) 5 Cal.5th 642, 691 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.

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Judicial Recognition That Juror Compromise May Produce Unreliable Verdicts When the Jury Is Given An All-Or-Nothing Choice Between Conviction and Acquittal

The rationale for requiring courts to instruct on lesser-included offenses is to avoid forcing the jury into an ” ‘unwarranted all-or-nothing choice’ ” that creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because ” ‘the defendant is plainly guilty of some offense.’ ” (People v. Hughes (2002) 27 Cal.4th 287, 365; accord, People v. Majors (1998) 18 Cal.4th 385, 410 [“One of the primary reasons for requiring instructions on lesser included offenses is … to eliminate ‘ “the risk that the jury will convict … simply to avoid setting the defendant free.” ’ [Citation.]”]; People v. Barton (1995) 12 Cal.4th 186, 196, 203 [” ‘Our courts are not gambling halls but forums for the discovery of truth.’ ” The “jury’s truth-ascertainment function” is impaired unless it is provided with “the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence”].)

 

Such instructions “encourag[e] the most accurate verdict permitted by the pleadings and the evidence.” (People v. Birks (1998)19 Cal.4th 108, 112; see People v. Breverman (1998) 19 Cal.4th 142, 161.) Moreover, we have said that a rule requiring such instructions “ensures that the jury will be exposed to the full range of verdict options which … are presented in the accusatory pleading itself and are thus closely and openly connected to the case.

 

Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither ‘harsher [n]or more lenient than the evidence merits.’ ” ( Birks , at p. 119, 77 Cal.Rptr.2d 848, 960 P.2d 1073 ; see Breverman , at p. 155, 77 Cal.Rptr.2d 870, 960 P.2d 1094 ; Barton (1995) 12 Cal.4th 186, 196.) In this connection, we have also emphasized that ” ‘[o]ur courts are not gambling halls but forums for the discovery of truth’ ” (Barton at 196, quoting People v. St. Martin (1970) 1 Cal.3d 524), “implying that an all-or-nothing choice encourages a high-risk, high-reward gambler’s approach to criminal justice.” (See People v. Hicks (2017) 4 Cal5th 203, 210.)

 

In People v Potts (2019) 6 Cal5th 1012 the Court again assumed that jurors may not follow the instructions and return an “erroneous conviction” when they are faced with a choice between conviction and acquittal. However, Potts in concluded that when the choice is between conviction and no decision the “risk of erroneous conviction is particularly diminished….” “We presume that jurors follow instructions. There is far less reason to doubt that they will do so when the alternative is a mistrial rather than an acquittal….”

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Failure to Object Does Not Forfeit the Issue on Appeal When There Is a Change in the Law

In People v. Sanchez (2016) 63 C4th 665 held that if an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay.

 

In People v. Perez (2020) ___ Cal5th ___ S248730; 2/27/20 defense counsel failed to object to inadmissible Sanchez evidence.

 

The claim was not forfeited because Sanchez was decided after the Perez trial. And, because the caselaw was settled before Sanchez which expressly changed the law, failure to object is not a forfeiture of the issue on appeal.

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Death Penalty: Consciousness of Guilt as Aggravation — Limiting Instruction Must Be Requested

In People v. Anderson (2018) 5 Cal.5th 372 the defendant, after the capital murder occurred in San Diego, traveled to Oregon, was arrested there, and later made plans to escape from the county jail in Oregon.  The CSC held that the evidence was not only admissible at the culpability phase to show consciousness of guilt, but also could be considered in aggravation at the punishment phase as part of the circumstances of the capital crime.  To the extent that the jury should have been instructed that the evidence could be considered only on the issue of defendant’s guilt, defendant failed to request any such instruction and the trial court had no sua sponte duty to so instruct.

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CC 334 — Accomplice Witness: No Burden on Defense When Charged Offense Requires Defendant to Have Acted with Accomplice

ALERT: CC 334 MAY UNCONSTITUTIONALLY SHIFT THE BURDEN OF PROOF TO THE DEFENDANT

 

“Sometimes a witness wears two hats: that of a witness, and that of an accomplice. California law permits placing the burden to prove such a witness’s accomplice status on a defendant. (People v. Tewksbury (1976) 15 Cal.3d 953, 963-68.)

This is because, in general, whether a witness is an accomplice is not an element of the defendant’s crimes. (Id. at p. 965.) But certain crimes, such as sexual penetration in concert and rape in concert, require proof that the defendant acted with an accomplice. [Citation to PC 264.1, subd. (a).] Because the witness’s accomplice status is an element of these crimes, the prosecution must bear the burden to prove that status beyond a reasonable doubt. (See Tewksbury, at pp. 963-964.) The portion of CALCRIM No. 334 that instructs the jury otherwise—i.e., that tells jurors that the burden is on the defendant to prove that it is more likely than not that the witness was an accomplice—should be omitted when the defendant is charged with in concert crimes.”

People v. Martinez (2019) 34 Cal.App.5th 721, 723

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Refusing to Testify After Getting Immunity Is Not Accessory After the Fact

In People v. Partee; S248520; 1/23/2020 the defendant was given immunity but refused to testify. Even though the defendant could have been found in contempt, the DA charged him with accessory after the fact per PC 32. The jury convicted him, and the C/A affirmed. The CSC unanimously reversed because mere silence did not meet the “overt or affirmative assistance,” element of the accessory charge.

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Ring Claim Down But Not Out

California Law Violates USSC Precedents Including Hurst v. Florida (2016) _U.S._ 136 S. Ct. 616
October 7th, 2018

 

it was suggested that counsel should request an instruction that the jury “could impose a death sentence only if it found that aggravating factors outweighed mitigating factors beyond a reasonable doubt,” based on Ring v. Arizona (2002) 536 U.S. 584, 609. However, in the context of the federal death penalty statute the federal courts of appeals that have considered this argument have uniformly rejected it, holding that a jury’s balancing inquiry in a capital case is a subjective and moral one, not a factual one. In Floyd v. Filson, 940 F.3d 1082 (9th Cir. (Nev.), Oct. 11, 2019) the Ninth Circuit expressed “skepticism” about the claim vis a vis the federal statute but declined to directly rule on it.

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Proper to Tell Jury to Use Magnifying Glass to Examine Exhibit Photos

Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical examination of the evidence admitted at trial is not impermissible. (See People v. Engstrom (2011) 201 CA4th 174; see also People v. Collins (2010) 49 C4th 175.)

Accordingly, allowing or inviting the jury to look closely at photos with a magnifying glass is not improper. Use of a magnifying glass to more closely examine an exhibit that has been admitted into evidence does not constitute improper experimentation, as it introduces no new evidence to the jury’s deliberations. (People v. Rhoades (2019) 8 Cal5th ***, S082101 (Cal. Nov. 25, 2019) slip. opn. at 86-87.)

If counsel wants the jurors to feel free to use a magnifying glass during deliberations it may be appropriate to modify the admonition in CC 101 to “not conduct any tests or experiments”  by expressly authorizing use of a magnifying glass.

See also FORECITE F 101 Note 7; F 101 Note 8; F 332 Inst 8.

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A Butter Knife Was Not a Deadly Weapon Because the Defendant Did Not Use It in a Manner “Capable of” And “Likely to Produce” Death or Great Bodily Injury

In order “for an object to qualify as a deadly weapon based on how it was used, [and demonstrate the commission of an assault with a deadly weapon,] the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury.”  (Original emphasis.)  Speculation “as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate.”  The evidence failed to demonstrate the knife the minor used to assault her sister was a deadly weapon as a matter of law because it was only a butter knife, “was not sharp and [only] had slight ridges on one edge of the blade”; the minor “used the knife only on [her sister’s] legs, which were covered with a blanket”; and “the moderate pressure that [the minor] applied with the knife was insufficient to pierce the blanket, much less cause serious bodily injury….” (In re B.M. (2018) 6 Cal.5th 528, 530.)

“We hold, consistent with settled principles, that for an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by Penal Code section 245(a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate. We conclude that the evidence here was insufficient to sustain a finding that the knife at issue was used as a deadly weapon, and we accordingly reverse the Court of Appeal’s judgment.” (Ibid.)