All posts by Julie Anne Ines

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Is It Proper to Instruct That an Excluded Defendant Was “Voluntarily” Absent?

In People v. Johnson (2018) 6 Cal.5th 541, 589 the judge excluded Johnson from the courtroom for the entire trial after he assaulted his lawyer; the jurors never saw or heard him.  The judge instructed the jury that defendant was “voluntarily” absent and they should not take this into account.  Defense counsel objected that the word “voluntarily” was untrue.  The CSC affirmed concluding:

 

“We need not decide whether a defendant who knowingly and voluntarily disrupts the proceedings such that the trial cannot continue   in his presence has voluntarily absented himself.”

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Instructions Must Not Interfere with Jurors’ Ability to Consider Their Personal Religious, Philosophical, and Secular Normative Values During Penalty Deliberation

During the penalty instructions in People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243 the judge said that jurors “are sometime tempted in this phase of the case to refer to biblical references.  Don’t bring the Bible and, don’t refer to those.” The CSC concluded that it is not improper for jurors to consider their religious belief during penalty deliberations.  Nor is improper for a juror to consider “personal religious, philosophical, or secular normative values during penalty deliberation.”  At the same time, penalty determinations are to be based on evidence presented and not by recourse to extraneous authority.  The CSC agreed with the Attorney General that the court’s prohibition on “refer[ring] to biblical references,” understood in context, precluded only the use of biblical texts during deliberations; it did not preclude the jury from relying on personal religious beliefs.  The instructions correctly stated the law.  Furthermore, it was not reasonably likely that the jury understood the trial court’s brief statement regarding “biblical references” to mean they could not rely on their personal religious belief during deliberations.

 

Nevertheless, the CSC cautioned judges to ensure that they are not improperly interfering with the jurors’ ability to consider their religious and other personal beliefs and values.

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CC 362 Not Erroneous But “Can Be Improved”

In People v. Burton (2018) 29 Cal.App.5th 917 the defense contended that the “false statements” jury instruction (CC 362) created an impermissible inference that Burton committed first degree murder versus a lesser offense. Burton argued the CC 362’s reference to the “charged crime” undermined any claim that the defendant may have felt a consciousness of guilt of a lesser offense than first degree murder and therefore created a presumption of guilt of the charged crimes. Burton noted that the analogous CALJIC instruction (CJ 2.03) provided only that deliberately false statements could be used to show a consciousness of guilt without restricting that awareness of guilt to the “charged” crime. The reviewing court concluded that the jury would have understood that any consciousness of guilt evidenced by Burton’s false statements to police would operate as to any degree of homicide, not merely first degree murder.

 

However, as the court observed, this does not mean that the instruction cannot be “improved.” Other CALCRIM instructions regarding consciousness of guilt speak of facts from which it may be inferred a defendant was “aware of (his/her) guilt” generally, without any possible suggestion that the inference is limited to guilt of the crime(s) charged, such as the instructions on suppression or fabrication of evidence (CC 371) and flight (CC 372) that were given to the jury in this case. Similarly, CC 362 could be amended to refer to consciousness of guilt without referencing the charged crime (as CJ. 2.03 did and as CC. 371 and CC 372 do) and avoid the issue. (29 Cal. App. 917, 926 n.2.)

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More Proposed CALCRIM Revisions — To Be Effective 9/24/19

Per an “Invitation to Comment” (5/28 – 7/5/19; CALCRIM-2019-01 — revisions to the following CALCRIM instructions and/or the accompanying commentary have been proposed to be effective 9/24/19.

 

See https://www.courts.ca.gov/documents/calcrim-2019-01.pdf)

 

 

 

Instruction Number

  

Instruction Title
 

101 & 200

 Cautionary Admonitions; Duties of Judge and Jury
 

 

252 & 1128

 Union of Act and Intent: General and Specific;

Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger
 

362

  

Consciousness of Guilt: False Statements
 

376

  

Possession of Recently Stolen Property as Evidence of a Crime
511, 524, 860, 862, 863,

875, 982, 983, 2503,

2720, 2721, 3130 & 3145

  

Instructions that define deadly or dangerous weapon
 

590

  

Gross Vehicular Manslaughter While Intoxicated
 

732

 Special Circumstances: Murder in Commission of Felony – Arson With Intent to Kill
 

1191A

  

Evidence of Uncharged Sex Offenses
 

1502

  

Arson: Inhabited Structure or Property
 

2100, 2101, 2102

  

DUI Causing Injury
 

2651 & 2652

 Trying to Prevent an Executive Officer From Performing Duty; Resisting an Executive Officer
 

2900

  

Vandalism
 

2902

  

Damaging phone or electrical line
 

23 instructions

  

Technical changes to renumber PC 288a to PC 287
Blog

CALCRIM Revisions

Effective March 15, 2019 the Judicial Council approved for publication revisions to the following CALCRIM instructions which were published in the March 2019 edition of the Judicial Council of California Criminal Jury Instructions.

Instruction Number Instruction Title
 

104, 202, 222

  

Evidence, Note-Taking and Read Back of Evidence
 

301, 334, 335

  

Single Witness’s Testimony, Accomplice Testimony
 

520

  

Murder: First and Second Degree
 

625, 3426

  

Voluntary Intoxication
 

707, 708

  

Special Circumstances: Accomplice Testimony
 

NEW 1145

  

Possession of Matter Depicting Minor Engaged in Sexual Conduct
 

1244

  

Causing Minor to Engage in Commercial Sex Act
 

1650

  

Carjacking
1900, 1901, 1902, 1904,

1905, 1930, 1932 & 1935

  

Forgery
 

2140

  

Failure to Perform Duty Following Accident
 

2300

  

Sale, Transportation for Sale, etc., of Controlled Substance
 

2500

  

Possession of Illegal or Deadly Weapon
 

2530

(984, 1161, 1162, 2966)

  

Carrying Loaded Firearm

(& Brandishing, Lewd Conduct in Public, Disorderly Conduct)
 

3181

  

Sex Offenses: Sentencing Factors – Multiple Victims
 

 

3412 & 3413

  

Compassionate Use; Collective or Cooperative Cultivation Defense
 

3454

  

Initial Commitment as Sexually Violent Predator

 

 

Summary of Selected Revisions:

 

Evidence, Note-Taking, and Reading Back of Testimony (CC 104, CC 202, and CC 222)

At the request of a trial court judge, the committee added alternate language related to electronic recording. Some courts electronically record misdemeanor trials.

 

Murder, First and Second Degree (CC 520)

People v. Johnson (2016) 6 Cal.App.5th 505, 515–516 concluded trhat the duty to act section of CC 520 was confusing. This section informs the jury that: “If you conclude that the defendant owed a duty to [the victim], and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.” The Johnson court determined this language was confusing because the concept of negligence was not otherwise addressed in the instructions and may have caused the jury to conflate negligence with implied malice. In response, CALCRIM deleted the legal duty to act paragraph. Instead a failure to act was incorporated within the elements of the instruction itself and within the explanatory paragraphs that define implied malice and causation.

 

Voluntary Intoxication (CC 625 and 3426)

People v. Soto (2018) 4 Cal.5th 968, 970 held that evidence of voluntary intoxication is not admissible on the question of whether the defendant subjectively believed it was necessary to act in self-defense. CALCRIM added a bench note to reflect this holding.

 

Possession of Matter Depicting Minor Engaged in Sexual Conduct (Proposed NEW instruction — CC 1145)

PC 311.11, which prohibits possession of matter depicting a minor engaged in

sexual conduct is an offense that can be charged as either a felony or misdemeanor. Although CALCRIM has instructions for other child pornography–related offenses, it did not contain an instruction for this offense. Upon the request of a trial court judge, CALCRIM drafted a new instruction.

 

 

 

 

Carjacking (CC 1650)

People v. Cabrera (2007) 152 Cal.App.4th 695, 702–703 distinguished carjacking from robbery by holding that “carjacking is strictly a crime against possession rather than ownership. As such it is not subject to a claim of right defense.” However, the language in the carjacking instruction still referred to the taking of “a motor vehicle that was not (his/her) own” despite the Cabrera holding. Accordingly, CALCRIM deleted the ownership language and updated the authority section with two recent cases that address the use of force in the context of carjacking: People v. Hudson (2017) 11 Cal.App.5th 831, 837 and People

  1. Lopez (2017) 8 Cal.App.5th 1230, 1237.

 

Forgery (CC 1900, CC 1901, CC1902, CC 1904, CC 1905, CC 1930, CC 1932, and CC 1935)

Passed by the voters in 2014, Proposition 47 created new penalty allegations for forgery when committed with any of seven specified instruments and where the value of the forged instruments exceeds $950. See PC 473(b). In 2015, CALCRIM updated CC 1900 to incorporate the value requirement but did not modify the other affected forgery instructions. CALCRIM has now updated these forgery instructions to include the value requirement as well as to specify the seven types of instruments that qualify under PC 473(b). The committee also added the citation of People v. Gonzales (2018) 6 Cal.5th 44 in which the California Supreme Court addressed the scope of PC 473(b).

 

Sale, Transportation for Sale, etc., of Controlled Substance (CALCRIM No. 2300)

In People v. Lua (2017) 10 Cal.App.5th 1004, 1014–1016 [217 Cal.Rptr.3d 23], the court reviewed the adequacy of jury instructions in a prosecution for transporting drugs for sale, pursuant to HS (Health and Safety Code) section 11379. The Lua court noted, “Nevertheless, although CALCRIM No. 2300 tracks the language of section 11379, it is at best questionable whether, standing alone, the instruction adequately explains the specific intent element of the offense.” (Id. at 1016.) In response to this case, the committee added Lua to the authority section but did not alter the instruction. Since Lua, several unpublished opinions have reiterated the same concerns about whether this instruction goes far enough to convey the specific intent required in transportation for sale cases. In response to these continuing expressions of concern, the committee has now inserted an additional element addressing intent to be used in transportation for sale cases.

 

Carrying Loaded Firearm (CC 2530) with related revisions to CC 984, CC 1161, CC 1162, and CC 2966

PC 25850(a) prohibits carrying a loaded firearm in a public place or on a public

street. CC 2530 instructs the jury to determine whether the defendant was in a public place or on a public street but does not include a definition of public place. The committee added the definition of public place, as it currently appears in other instructions. The committee also updated the case law in the authority section for “Public Place Defined” by deleting some older cases and adding a more recent case (People v. Strider (2009) 177 Cal.App.4th 1393). This revision of “Public Place Defined” affected four other CALCRIM instructions: CC 984, CC 1161, CC 1162, and CC 2966. CALCRIM also made two other changes to CC 2530: (1) added People v. Wade (2016) 63 Cal.4th 137, 140 (holding that a loaded firearm in a backpack is “on the person”) to the authority section; and (2) deleted the taser section under related issues because the type of taser at issue in the cited case (People v. Heffner (1977) 70 Cal.App.3d 643, 652 is a defunct model that used gunpowder as a propellant. Since the late 1990s, tasers have been manufactured to use compressed nitrogen instead of gunpowder, and therefore no longer qualify as firearms.

 

Suggested Revision to CC 1145 Rejected:

 

One commentator suggested that the following should be placed in the “Bench Notes” or “Related Issues” section of that instruction: “A violation of Penal Code Section 311.11 may be proved by testimony only; i.e., the actual photos need not be produced. People v. Mendoza (2015) 240 Cal.App.4th 72.”

 

CALCRIM Rejected this suggestion because “the holding in People v. Mendoza is based on a substantial evidence determination. As such, the committee felt that its reasoning was not broadly applicable enough to include in the bench notes.”

 

FOR TEXT OF ALL THE REVISIONS SEE

 

https://jcc.legistar.com/View.ashx?M=F&ID=7058004&GUID=DE6D7F33-2B88-4024-AAFA-2E8CD267D70D

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Proposed Changes to Statutory Authority Re: CALCRIM Oral Copulation Instructions, Effective 9/24/19

Per an “Invitation to Comment” (5/28 – 7/5/19; CALCRIM-2019-01) the statutory authority for the following instructions on oral copulation is to be changed from Penal Code section 288a to Penal Code section 287. (The proposed effective date of the changes is 9/24/19.)

123 Witness Identified as John or Jane Doe
208 Witness Identified as John or Jane Doe
810. Torture
890. Assault With Intent to Commit Specified Crimes
1015 Oral Copulation by Force, Fear, or Threats
1016 Oral Copulation in Concert
1017 Oral Copulation of an Intoxicated Person
1018 Oral Copulation of an Unconscious Person
1019 Oral Copulation of a Disabled Person
1020 Oral Copulation of a Disabled Person in a Mental Hospital
1021 Oral Copulation by Fraud
1022 Oral Copulation While in Custody
1070 Unlawful Sexual Intercourse: Defendant 21 or Older
1080 Oral Copulation With Person Under 14
1081 Oral Copulation With Minor: Defendant 21 or Older
1082 Oral Copulation With Person Under 18
1090 Sodomy With Person Under 14
1091 Sodomy With Minor: Defendant 21 or Older
1101 Sexual Penetration With Minor: Defendant 21 or Older
1123 Aggravated Sexual Assault of Child Under 14 Years
1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses

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Is Accomplice Testimony “Exonerating” When It Tends to Incriminate the Defendant of Lesser Offense?

CC 334 instructs that accomplice testimony requires corroboration before the jury may accept it as true. However, the defense may want to consider requesting modification of CC 334 when the defendant’s statements serve to show his guilt of a lesser offense than the charged offense. (See e.g., sample below.) Statements which mitigate or lessen the defendant’s culpability are exculpatory as to the greater offense but inculpatory as to the lesser offense. By failing to make this distinction the optional language of CC 358 improperly instructs the jurors to consider exculpatory evidence with caution.

 

Sample Instruction

 

Add to Paragraph 2 of CC 358:

 

Do not consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt of __________________________________ [insert applicable lesser included offense(es).  

 

Tags: CC 358, Sample Instructions, Cautionary and Limiting Instructions, Lesser Included Offenses, Lesser Related Offenses

 

In People v. Smith (2017) 12 Cal. App. 5th 766, 778-80 the judge instructed the jury per the standard CALCRIM instructions that accomplice testimony requires corroboration before the jury may accept it as true. The appellate Court criticized these instructions because they failed to explain that the supporting evidence requirements applies “only when [the accomplice] testimony is being used to determine a fact used to convict a defendant.” (Id. at 780.) Furthermore, CC 301 was erroneous because “it instructed the jury that … all of Mitchell’s testimony, including the exculpatory testimony pertaining to Smith, required corroborating evidence before the jury could accept it as true.” (Id. at 780.) In other words, CC 301 “improperly informed the jury that there must be corroborating evidence to support an accomplice’s testimony that is either neutral or exonerating.” (Ibid.)

The CALCRIM committee modified CC 334 in response to Smith by limiting the corroboration requirement to a statement or testimony “that tends to incriminate the defendant….” This change implies that exonerating statements/testimony need not be corroborated or viewed with caution the instruction.

So counsel may wish to request an instruction which expressly explains this distinction.

Furthermore, the defense could object to CC 334 if the accomplice testimony is “solely exculpatory or neutral.” (See CC 334, Benchnotes [citing Smith].)

Support for the above proposals is rooted in fundamental constitutional principles. In Washington v. Texas (1967) 388 U.S. 14, the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to present exculpatory testimony of an accomplice to the jury. In Cool v. United States (1972) 409 U.S. 100, 104, the Court held that instructing a jury to ignore defense accomplice testimony unless the jury believed the testimony to be true beyond a reasonable doubt “impermissibly obstruct[ed] the exercise of that right” and “ha[d] the effect of substantially reducing the Government’s burden of proof.”

Sample Instruction (add at end of CC 334):

The above rules regarding accomplice testimony or statements do not apply to any such testimony or statement or parts thereof which is either neutral or exonerating. In other words, if the testimony or statement tends to negate or disprove any essential fact or element of the charged offense which the prosecution is required to prove.

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CALCRIM Proposes Changes to Felony Murder/Accomplice Instructions Per SB 1437 to Be Effective September 24, 2019

The proposed modifications are summarized in an “Invitation to Comment” (5/28 – 7/5/19; CALCRIM-2019-01). The proposed effective date of the changes is 9/24/19. CALCRIM summarizes the proposed felony murder/accomplice changes as follows:

 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission or attempted commission of a designated felony when a person was killed, the defendant is now liable under the felony- murder rule only if: (1) the defendant was the actual killer; (2) the defendant was not the actual killer but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in committing murder in the first degree; or (3) the defendant was a major participant in the underlying designated felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).) These restrictions do not apply when the victim was a peace officer and the defendant knew or reasonably should have known that the victim was a peace officer acting within the performance of his or her duties. (Pen. Code, § 189(f).)

 

As a result of these changes, the committee has modified CALCRIM Nos. 540B and 540C to incorporate the additional statutory elements for accomplice liability. The committee has also removed CALCRIM Nos. 541A, 541B, and 541C which addressed second degree felony murder. These instructions are included in an appendix, along with the former versions of Nos. 540A, 540B, and 540C.

 

It is further proposed that the felony murder instructions should be used as follows:

For a simple case in which the defendant allegedly personally caused the death by committing a direct act of force or violence against the victim, the court may use CALCRIM No. 540A. This instruction contains the least amount of bracketed material and requires the least amount of modification by the court.

 

In a case where the prosecution alleges that a participant in the felony other than the defendant caused the death is a “nonkiller cofelon” liable under the felony-murder rule for a death caused by in the felony, then the court must use CALCRIM No. 540B. This instruction allows the court to instruct that the defendant may have committed the underlying felony or may have aided and abetted or conspired to commit an underlying felony that actually was committed by a coparticipant.

 

If the evidence indicates that either the defendant or a coparticipant may have committed the fatal act, the court should give both CALCRIM No. 540A and CALCRIM No. 540B.

 

In addition, the committee has provided CALCRIM No. 540C to account for the unusual factual situations where a victim dies during the course of a felony as a result of a heart attack, a fire, or a similar cause, rather than as a result of some act of force or violence committed against the victim by one of the participants. (See People v. Billa (2003) 31 Cal.4th 1064, 1072.) This instruction is the most complicated of the three instructions. Thus, although C CALCRIM No. 540C is broad enough to cover most felony-murder scenarios, the committee recommends using instruction CALCRIM Nos. 540A or 540B whenever appropriate to avoid providing the jury with unnecessarily complicated instructions.

 

The CC instructions affected by these above proposals are the following:

 

 

Instruction Number

  

Instruction Title
 

540A

  

Felony Murder: Defendant Actual Killer
 

540B & 540C

  

Felony Murder: Accomplice Liability
 

541A, 541B, 541C

  

Second Degree Felony Murder
 

402 & 403

  

Natural and Probable Consequences

 

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Can a Judge Properly Encourage Juror Notetaking?

The practice of jury notetaking is approved by Penal Code § 1137, but the CSC has cautioned that notetaking creates risks that:

 

  1. More significance will be placed by the jurors on their notes than on their own independent recollection.
  2. Notetaking may accentuate irrelevancies and ignore more substantial issues and evidence.
  3. Notes could unduly influence other jurors.
  4. Notetaking may cause the juror not to pay sufficient attention to the behavior of witnesses.

 

In People v. Whitt (1984) 36 Cal. 3d 724, 746-47 the CSC acknowledged that other jurisdictions “found error in [a court’s] failure to give [a] cautionary instruction” regarding the risks of note-taking, but we merely opined that giving such an instruction is “the better practice.” Since then the Court has held that the trial court is not required to give such an instruction. (People v. Marquez (1992) 1 Cal.4th 553, 578.)

 

In People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243 Gomez argued that by sternly advising the jury against “not taking enough notes,” the trial court “elevated the importance of juror notetaking over observation of the witnesses” and therefore interfered with the jury’s “unique and exclusive responsibility and power to evaluate the credibility of witnesses.” Gomez highlighted a number of admonitions by the trial judge, including that he would be “very discouraged” to “see jurors just sitting there with their notes in their lap and it won’t be recorded in your memories because you aren’t trying to take those notes”; that the “thing that infuriates [the trial court] the most about jurors is when they first go in to deliberations and the first hour or two [the court] get[s] a note sent out saying [the jury] want[s] a reread of the testimony …”; that jurors should “take a lot of notes”; and that taking notes was part of their “job in recording the information.”

 

The CSC rejected the defense arguments and concluded as follows:

 

Nonetheless, the CSC has held it is not necessary to instruct the jurors to be cautious about the use of notes. For example, in People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243, the CSC concluded that:

 

  1. The trial court’s admonitions to jurors to take close notes could not be understood as an instruction to jurors that they should prioritize notetaking at the expense of their duty to make credibility determination.
  2. The court’s emphasis on notetaking did not direct the jury to elevate notetaking over observing witnesses and evidence, but rather served to caution the jury that notetaking can supplement credibility determinations and ensure that the jury deliberations would not be impeded by needless requests for readback of testimony.
  3. There was no risk the jury would be impeded from requesting readback if they determined they needed it. (Id. at 301.)

 

But see, Forecite F 102 JUROR NOTE TAKING

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When Is Instruction on Defendant’s Oral Statements Required Sua Sponte?

People v. Johnson (Cedric) (2018) 6 Cal.5th 541 addressed the issue of whether the judge must sua sponte instruct regarding the defendant’s oral statements as follows: “Until recently, we had imposed on trial courts a sua sponte duty to instruct the jury that a defendant’s oral admissions should be viewed with caution.  [CALJIC No. 2.71.7; now CALCRIM No. 358.]  … In People v. Diaz (2015) 60 Cal.4th 1176, though, we determined that the instruction need be given only on request.”  However, because Diaz is not retroactive, it was error not to give the instruction sua sponte at this pre-Diaz trial.  However, the error was harmless.  Newton, the witness who told the police about defendant’s incriminating out-of-court statements, testified at trial that he did not hear any such statements.  The circumstances implicated numerous cautionary instructions that were given: prior inconsistent statements; discrepancies between witnesses; a witness willfully false in part; a witness who was a convicted felon.  The jury was adequately cautioned.