All posts by Julie Anne Ines

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Should Defendant’s Statements Which Show Guilt of Lesser Offense Be Viewed with Caution?

In People v. Powell (2018) 6 Cal. 5th 136; 169 the defendant contended that the cautionary instruction regarding the defendant’s out of court oral admissions (CJ 2.71.7) “pertains only to statements harmful to the defense.” The CSC apparently agreed that the instruction does not apply to exculpatory statements: “[T]his instruction properly applies to ‘any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant’s guilt’.” [Emphasis in original.] (Ibid. [citing and quoting People v. Diaz (2015) 60 Cal. 4th 1176, 1187 [“…cautionary instruction applies to any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant’s guilt…” and CC 358].)

 

CC 358 includes the following optional language for use – according to the Bench Notes — when “the jury heard both inculpatory and exculpatory statements by the defendant…” but should not be given if “the jury heard only exculpatory statements…” –

 

Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]

 

However, the defense may want to consider requesting modification of CC 358 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).

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When Does the Evidence Support Instruction on “Kill Zone” Theory of Attempted Murder?

People v. Medina (2019) 33 Cal.App.5th 146 held that the judge erroneously gave the CALCRIM “kill zone” instruction (CC 600) because there was no evidence that the defendant had “a primary target” whom he attempted to kill:

 

For purposes of an attempted murder charge, intent to kill does not transfer to nontargeted individuals. Nonetheless, the kill zone      theory … yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant’s ‘primary target.’ A conviction for attempted murder under a kill zone theory requires evidence that the defendant created a kill zone; that is,  while targeting a specific person ‘the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted  individual was located. …  In a kill zone case, the defendant does not merely subject everyone in the kill zone to lethal risk. Rather, the   defendant specifically intends that everyone in the kill zone die.’” [Emphasis original.]

 

“[T]he kill zone instruction [CJ 600] is not appropriate in the absence of evidence indicating the defendant had a primary target, and    the specific intent to kill everyone in the kill zone around the primary target to ensure the target’s death. The theory does not mean the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.”  In this case in which defendants fired into a crowd of people, there was no evidence there was a primary target, so the kill zone instruction should not have been given.”  (In an unpublished portion of the opinion, the court finds the error harmless.)

 

Note:  On April 3, the CSC heard oral argument on another case involving the “kill zone” instruction, People v. Canizales, No. S221958.  An opinion can be expected by early July. See this post California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine March 30th, 2015

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CSC to Consider Whether Eyewitness Certainty Instruction Violates Due Process?

Studies have persuaded courts in other states to modify their standard jury instruction to remove certainty as a relevant consideration. (See, e.g., Commonwealth v. Santoli (1997) 424 Mass. 837, 846 [“there is significant doubt about whether there is any correlation between a witness’s confidence in her identification and the accuracy of her recollection”]; State v. Mitchell (2012) 294 Kan. 469, 471.)

However, People v. Sánchez (2016) 63 Cal.4th 411, 462 – a case involving “many identifications, some certain, some uncertain” – the CSC concluded that “[a]ny reexamination of our previous holdings {approving instruction on the certainty factor] in light of developments in other jurisdictions should await a case involving only certain identifications.”

That wait ended with the CSC’s granting of review in People v. Lemcke, (Rudd) S250108. (G054241; nonpublished opinion; Orange County Superior Court; 14CF3596:

Petition for review after the Court of Appeal affirmed judgments of conviction of criminal offenses. This case presents the following issue: Does instructing a jury with CALCRIM No. 315 that an eyewitness’s level of certainty can be considered when evaluating the reliability of the identification violate a defendant’s due process rights?

In Lemcke (Rudd) defense counsel brought the “certainty” portion of CC 315 to the trial court’s attention. Rudd’s connection to the charged offenses was not supported by any physical evidence, there were no uncertain identifications, and the case against Rudd consisted entirely of the eyewitness testimony. However, because the Court of Appeal rejected the challenge because it believed it was bound by the decisions in Sánchez and People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 [CSC rejected a challenge to CJ 2.92, the precursor to CC 315 which advised jurors that on the issue of eyewitness identification they could consider “[t]he extent to which the witness was either certain or uncertain of the identification”].

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Will the CSC Finally Recognize That Eyewitness Certainty Is Not a Reliable Indicator of Accuracy People v. Simpson UNPUBLISHED (Dec. 13, 2018, No. A146962)?

In People v. Simpson UNPUBLISHED (Dec. 13, 2018, No. A146962) the defense argued at trial and on appeal that the CALCRIM instruction on eyewitness identification (CC 315) erroneously told the jurors that the “certainty” of an eyewitness about an identification is relevant to determining whether the identification was reliable. Simpson relied on scientific research cited by his eyewitness expert at trial which concludes that certainty does not correlate with accuracy.

 

Such studies have persuaded courts in other states to modify their standard jury instruction to remove certainty as a relevant consideration. (See, e.g., Commonwealth v. Santoli (1997) 424 Mass. 837, 846 [“there is significant doubt about whether there is any correlation between a witness’s confidence in her identification and the accuracy of her recollection”]; State v. Mitchell (2012) 294 Kan. 469, 471.)

 

However, People v. Sánchez (2016) 63 Cal.4th 411, 462 – a case involving “many identifications, some certain, some uncertain” – the CSC concluded that “[a]ny reexamination of our previous holdings {approving instruction on the certainty factor] in light of developments in other jurisdictions should await a case involving only certain identifications.

Simpson is precisely such a case – the only eyewitness expressed certainty – and, together with the evidentiary record at trial, it would be the perfect vehicle for reconsideration of the issue by the CSC. Presumably Simpson will petition for review in the CSC and perhaps they will chose this case to bring California’s eyewitness jury instruction in line with the latest scientific literature.

 

Moreover, given passage of Senate Bill No. 923 eyewitness reliability may be on the CSC’s “front burner.”

 

For sample instructions and further briefing on this issue see F 315.1.3 Eyewitness Identification: Specific Factors.

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Modification of CC 3472 to Reflect Escalation Doctrine

CC 3472 provides as follows:

 

“A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”

 

Under the “plain terms” of this instruction the use of “any amount of ‘force’ entirely preclude[s] [a defendant] from invoking perfect or imperfect self-defense [even if] “the original victim escalated a nondeadly conflict to deadly proportions.” (People v. Ramirez (2015) 233 Cal.App.4th 940, 950.)  As such, CC 3472 “misstates the law.” (Ibid.)

 

Accordingly, when there is evidence in support of such deadly escalation by the original victim the judge is obligated to correct the inaccurate blanket limitation of CC 3472 and properly instruct on the escalation doctrine: “the trial court’s instruction on contrived self-defense erroneously directed the jury to conclude a person has no right of self-defense against an adversary’s deadly attack, even if the defendant contrived to provoke a confrontation to use only nondeadly force against the adversary.” [emphasis in original] (Id. at 945; cf., People v. Enraca (2012) 53 Cal.4th 735, 761–762 [no error in giving CC 3472 in absence of escalation evidence]; People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 [same].)

 

Sample escalation instructions:

SAMPLE INSTRUCTION #1

 

An original aggressor who initiated the encounter with non-deadly force, such as a simple assault, need not withdraw if the victim of the simple assault responds in a sudden and deadly counter-assault.

 

SAMPLE INSTRUCTION #2

 

A person who participated in nondeadly mutual combat, such as a fist fight, need not withdraw if the other combatant unexpectedly used deadly force.

 

SAMPLE INSTRUCTION # 3:

If the defendant provoked the use of force, but _______________ (name of alleged victim) used force greatly disproportionate to the defendant’s provocation and it was so great that the defendant reasonably believed [he] [she] was in imminent danger of death or injury, the defendant is not considered to have provoked the incident and [he] [she] lawfully acted in self defense.

[See IOWA CRIMINAL JURY INSTRUCTIONS 400.14 [Provocation – Disproportionate Force] (Iowa State Bar Association, 1991).]

SAMPLE INSTRUCTION # 4:

Before a defendant who is an initial aggressor using nondeadly force can be excused on the grounds of self defense, the defendant has a duty to retreat to avoid the danger if he can do so consistent with his safety. If there is no safe place available, the defendant is entitled to use whatever force is reasonably necessary to repel the counter attack to save himself from imminent danger of serious bodily harm or death.

[See Watkins v. State (MD 1989) 555 A2d 1087; Tipton v. State (MD 1967) 232 A2d 289, 292; see also Aaronson,              MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.13(b) [Self-Defense-Where Defendant               is Alleged Aggressor-Where Defendant Is Aggressor Using Non-Deadly Force, Victim Counterattacks With Deadly                    Force, And The Defendant Subsequently Uses Deadly Force To Defend] ¶ 2 (Lexis, 2nd ed. 1988).]

SAMPLE INSTRUCTION # 5:

A person who commits a nondeadly wrongful act such as [assaulting another with fists or a weapon that is not deadly] [insulting someone with words] [trespassing on someone else’s property] [trying to take someone else’s property in a nonviolent way] does not lose all right to self defense by committing such a wrongful act. If another person responds by assaulting the initial wrongdoer with deadly force, the initial wrongdoer may lawfully act in self defense.

[See MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.19 [Non Deadly Aggressor Assaulted With Deadly Force] (ICLE, 2nd ed. 1999); see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7; People v. Townes (MI 1974) 218 NW2d 136; People v. Smith (MI 1976) 240 NW2d 475.]

SAMPLE INSTRUCTION # 6:

The use of force in defense of a person is not available to a person who purposely or knowing provokes the use of force against himself unless [such force is so great that he reasonably believes that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant] [in good faith he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force].

[See MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 3-105 [Use Of Force By Aggressor] (State Bar of Montana, 1990).]

SAMPLE INSTRUCTION # 7:

The initial aggressor may not invoke the defense of self protection unless: (1) he did not initially use deadly force and (2) the force returned or threatened was such that the defendant believed himself to be in imminent danger of death or serious physical injury.

[See Cooper, KENTUCKY INSTRUCTIONS TO JURIES 11.11 [Self Protection; Initial Aggressor Qualification] (Anderson, 4th ed. 2001).]

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Pre-Deliberation Instructions (CC3550): Modification When Received Benefits from Prosecution in Exchange for Testimony

Considerations of punishment are important with respect to witnesses who have received or been promised benefits from the prosecution such as immunity or leniency. (See e.g., CC 105 and CC 226.) For example, in Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), “the Government’s case depended almost entirely” on one witness, yet the prosecution failed to inform the defense that the witness testified in exchange for a promise from the government that he would not be prosecuted. The Supreme Court held that the prosecution was required to inform the defense about its agreement with the witness because “evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness’s] credibility and the jury was entitled to know of it,” and the Court ordered a new trial.  (Id. at 154-55; see also, this post: Witness Credibility: Expected Benefit from Prosecutor
August 14th, 2018

 

Accordingly, the following sentence in CC 3550 should be modified or deleted when a witness has received or been promised a benefit from the prosecution: “You must reach your verdict without any consideration of punishment.”

 

A possible modification would be as follows:

 

“You must reach your verdict without any consideration of punishment of the defendant.”

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Defendant’s Statements Before Trial vs. Testimony at Trial: Clarification of Potentially Misleading Language in CC 358

Jurors could interpret the first and second paragraphs of CC 358 to apply to both statements made by the defendant before trial and to the testimony of the defendant during trial. To clarify this potential ambiguity CC 358 could be modified to provide as follows [added language is bolded]:

 

[Para 1; sentence 1] You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial started/while the court was not in session).

 

[Para 2] Consider with caution any statement made by (the/a) defendant before trial started …

 

Unless these modifications are made there is a danger that the jurors will not understand that the cautionary language does not apply to the defendant’s testimony at trial.

 

Regarding judge’s duty to give this instruction see this post: Cautionary Instruction on Defendant’s Statements Not Required Sua Sponte

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What is a Developmental Disability for Purposes of Giving Witness Cautionary Instruction (CC 331)?

Pursuant to PC 1127g, CC 331 provides specific guidance on evaluating the testimony of persons with “developmental, cognitive, or mental disability.”

 

However, the statutory language does not define the terms “developmental disability” or “cognitive, mental, or communication impairment.” In such cases it is appropriate to look to the legislative history for guidance. In so doing, People v. Catley (2007) 148 Cal.App.4th 500, 508 concluded that: “The Legislature defined a dependent person as “any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights….” Evidence Code Section 177 contains an identical definition dependent person.

 

On the other hand, People v. Keeper (2011) 192 Cal.App.4th 511, 520-521 concluded that “[i]t is apparent from the legislative history and the definition of “dependent persons” that the Legislature intended section 1127g to apply to persons whose developmental disability, or cognitive, mental, or communication impairment, causes them to be dependent on others for care.” [Emphasis added.]

 

Keeper’s focus on whether or not the witness is “dependent on others for care” and not on whether the person can “protect his or her rights” improperly limits the scope of the statute and frustrates the overarching legislative objective of protecting the rights of those who cannot do so themselves.

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Limited Evidence Instructions Must Be Separately Requested

The CALCRIM instructions on limited evidence (CC 303, CC 304, and CC 305) are not required to be given in the absence of a request by counsel. (See Evidence Code section 355; People v. Simms (1970) 10 CA 3d 299, 310 [CC 303 and CC 304]; People v. Miranda (1987) 44 C3d 57, 83 [CC 304].)

 

Thus, in cases where important evidence has been limited to the benefit of the defendant counsel should assure that the appropriate instructions are given by making separate instructional requests for any or all of the following instructions:

 

CC 303 Limited Purpose Evidence In General

 

CC 304 Multiple Defendants: Limited Admissibility Of Evidence

 

CC 305 Multiple Defendants: Limited Admissibility Of Defendant’s Statement