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SUMMARY OF NEW AND REVISED CALCRIM INSTRUCTIONS EFFECTIVE AUGUST 26, 2016

The following CALCRIM instructions were addressed by the judicial council effective August 26, 2016:

 

Instruction Number

                            Instruction Title
121

Duty to Abide by Translation Provided in Court
375 Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.
416 Evidence of Uncharged Conspiracy
418 Coconspirator’s Statements
703 Special Circumstances: Intent Requirement for Accomplice

After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))
731 Special Circumstances: Murder in Commission of Felony—Kidnapping With Intent to Kill After March 8, 2000 (Pen.Code, § 190.2(a)(17))
732 Special Circumstances: Murder in Commission of Felony—Arson With Intent to Kill (Pen. Code, § 190.2(a)(17))
946 Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1)
102 Oral Copulation While in Custody (Pen. Code, § 288a(a),(e))
1037 Sodomy While in Custody (Pen. Code, § 286(e))
1045 Sexual Penetration by Force, Fear, or Threats (Pen. Code, §289(a)(1), (2), (g))
1111 Lewd or Lascivious Act: By Force or Fear (Pen. Code, §288(b)(1))
1121 Annoying or Molesting a Child in a Dwelling (Pen. Code, §647.6(a)–(c))
1122 Annoying or Molesting a Child (Pen. Code, § 647.6(a)–(c))
1125 Arranging Meeting With Minor for Lewd Purpose (Pen. Code,§ 288.4(a)(1)
1126 Going to Meeting With Minor for Lewd Purpose (Pen. Code,§288.4(b))
1193 Testimony on Child Sexual Abuse Accommodation Syndrome
1502 Arson: Inhabited Structure or Property (Pen. Code, §451(b))
1515 Arson (Pen. Code, § 451(c–d))
1800 Theft by Larceny (Pen. Code, § 484)
1802 Theft: As Part of Overall Plan
2000 Insurance Fraud: Fraudulent Claims (Pen. Code, §550(a)(1), (4)–(7) & (9))
2361 Transporting or Giving Away Marijuana: More Than 28.5 Grams (Health & Saf. Code, § 11360(a))
2362 Offering to Transport or Give Away Marijuana: Not MoreThan 28.5 Grams—Misdemeanor (Health & Saf. Code, § 11360(b)
2363 Offering to Transport or Give Away Marijuana: More Than 28.5Grams (Health & Saf. Code, § 11360(a))
2630 Evidence Tampering by Peace Officer or Other Person (Pen. Code, § 141)
2651 Trying to Prevent an Executive Officer From Performing Duty (Pen. Code, § 69)
2652 Resisting an Executive Officer in Performance of Duty (Pen.Code, § 69)
2653 Taking Firearm or Weapon While Resisting Peace Officer or Public Officer (Pen. Code, § 148(b) & (c))
2655 Causing Death or Serious Bodily Injury While Resisting Peace Officer (Pen. Code, § 148.10(a) & (b))
2656 Resisting Peace Officer, Public Officer, or EMT (Pen. Code,§148(a))
2670 Lawful Performance: Peace Officer
2720 Assault by Prisoner Serving Life Sentence (Pen. Code, § 4500)
2721 Assault by Prisoner (Pen. Code, § 4501
2735 Holding a Hostage (Pen. Code, § 4503)
2901 Vandalism: Amount of Damage (Pen. Code, § 594(b)(1))
2980 Contributing to Delinquency of Minor (Pen. Code, § 272)
3220 Amount of Loss (Pen. Code, § 12022.6)
3223 Reckless Driving With Specified Injury (Veh. Code, § 23105(a))

 

 

Error to Give CC 370 For Crimes Which Include Motive As An Element

Added the following Bench Note to CC 370 and CC 1121, CC 1122, CC 1125, and CC 1126:

Do not give CALCRIM No. 370, Motive, with this instruction because motive is an element of the crime. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126–1127.

 

 

CC 375: Revised Discussion of Burden of Proof

In Light of People v. Virgil (2011) 51 Cal.4th 1210, 1258-1259 jury may consider

evidence by two different evidentiary standards: “If the jury finds the facts sufficiently proven [by a preponderance of the evidence] for consideration, it must still decide whether the f        acts are sufficient, taken with all the other evidence, to prove the defendant’s guilt beyond a reasonable doubt.” (Id. at 1259-1260.)

 

CC 418: Instruction Revised Re: Overt Act Committed By “Another Member of the Conspiracy”

Instruction revised to read as follows:

To decide whether (the/a) defendant or another member of the conspiracy committed (this/these) overt act[s], consider all of the evidence presented about the act[s].

 

CC 703, CC 731, and CC 732: Discussion of Special Circumstance Instructions

  1. Bench notes revised in light of People v. Odom (2016) 244 Cal.App.4th237, 256-257.
  2. Modification of instructions recommended when “multiple special circumstances are charged, one or more of which require intent to kill, the court may need to modify this instruction.”

 

CC 1045 Sexual Penetration

Notes revised to include sexual battery PC 243(a) and PC 243(e) (1) as lesser included offense under the “expanded accusatory pleading test per People v. Ortega (2015) 240 Cal.App.4th 956, 967-970

 

CC 1111: Lesser Included Note

Lewd or Lascivious Act on Child Under 14 (PC 288) is lesser included.

 

CC 1193: Discussion of Sua Sponte Duty When Expert Testifies Regarding CSAAS

  1. CALCRIM concludes in light of, inter alia, People v. Mateo (2016) 243 Cal.App.4th1063, 1073-74 — that instruction need only be given upon request.
  2. Retained citation to People v. Housley (1992) 6 Cal.App.4th 947, 958–959 which did find a sua sponte duty.

 

CC 1502: Application to Both Inhabited Structure or Inhabited Property; Burning One’s Own Property

  1. Instruction revised to include burning of “inhabited property.”
  2. Note added re: applicability of the statute when a person burns his own property.

 

CC 2000: Insurance Fraud

Modified first element to provide as follows:

  1. The defendant knowingly committed the following crime[s] [or] [aided and abetted] [or] [solicited] [or] [conspired with someone else] to commit (it/them)]:

 

CC 3220: Great Taking Enhancement Applicable to Aider and Abettor

Added note that the Great Taking Enhancement Encompasses Liability of Aiders and Abettors in light of People v. Acosta (2014) 226 Cal.App.4th 108, 123-6.

 

CC 2361, 2362, 2363: Transportation “For Sale”

Modified definition of “transports” to provide as follows:

A person transports something if he or she carries or moves it for sale from one location to another, even if the distance is short.]

 

CC 2651-2656, CC 2670: Photographing Officers

Added the following instructional language:

   Photographing or recording an executive officer while the officer is in a public place or while the person photographing or recording is in a place where he or   she has the right to be is not, by itself, a crime.

 

CC 1800, CC 1802: “Serial Thief” – Multiple Counts

          Added the following citation to People v. Whitmer (2014) 59 Cal.4th 733, 740-741 and the following note:

A serial thief “may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching            scheme.” [disapproving any interpretation of People v. Bailey (1961) 55 Cal.2d 514 inconsistent with this conclusion.]

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Jury Instructions Should not Permit Jurors to Reject Defense Evidence Without Considering It

It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge.  (See e.g., Martin v. Ohio (87) 480 US 228 [94 LEd2d 267; 107 SCt 1098] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]

 

Consistent with these principles cases have recognized that defense evidence “must” be considered by the jury. “The jury may not believe the defense evidence … but it must take it into consideration in its deliberations if the defendant is to have a fair trial on all the issues raised. [Emphasis in original.] (People v. Stevenson (1978) 79 Cal.App.3d 976, 987; see also e.g., Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence].)

 

Also consistent with these principles many CALCRIM instructions 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”].)

 

Furthermore, CC 332 instructs jurors as follows regarding expert witness testimony:

You must consider the opinion[s], but you are not required to accept (it/them) as true or correct.

 

Similarly, CC 763 requires consideration of death penalty evidence:

In reaching your decision, you must consider and weigh the aggravating and mitigating circumstances or factors shown by the evidence.

 

(See also CC 766; CC 1215[“…you must consider all the circumstances relating to the movement.]; see also CC 3175.)

 

However, CALCRIM also contains instructions which erroneously permit the jurors to reject defense evidence without considering it by stating that the jurors “may consider” the evidence. (See e.g., CC 105 and CC 226, para 2; CC 316, Alternatives A and B; CC 2100, para 7, CC 2101 para 4, 2102, para 5, 2110, para 8, 2111, para 4, 2113, para 3, 2114, para 5, CC 2965, para *; CC 2200, para 4; CC 2430, para 3-6, 2431, para 3-6, 2432, 4-7; CC 2514, para 6-9; CC 2745, para 13, CC 2746, para 11, CC 2747; CC 3450, para 7; CC 3470, para 6-9.)

 

As to any such instructions the phrases: “You may consider …” or “… you may consider …” should be changed to “Consider …” or “… consider …”

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CC 320 Should Be Limited When a Gang Associate’s Refusal to Testify Is Admitted for the Limited Purpose of Supporting Gang Expert Testimony

CC 320, which applies to situations where a witness refuses to testify based on an invalid exercise of privilege, provides as follows:

<Alternative B—Invalid Exercise of Privilege>

[ <Insert name of witness> did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations.]

This instruction is based on the following analysis:

“When a ‘court determines a witness has a valid Fifth Amendment right not to testify, it is . . . improper to require him [or    her] to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors      about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the     possibility the assertion of privilege may be based upon reasons unrelated to guilt. . . . But where a witness has no     constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative           inference when such a witness refuses to provide relevant testimony.'” (People v. Morgain (2009) 177 Cal.App.4th 454, 466,           see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.)

Applying Morgain and Lopez, People v. Sisneros (2009) 174 Cal.App.4th 142 held that the jury could permissibly draw a limited evidentiary inference from a gang associate’s refusal to be sworn or testify in the defendant’s trial when she had no legitimate right to refuse to testify. (Id. at pp. 151-152.) The court permitted the jury to consider the associate’s refusal to testify for the limited purpose of supporting an expert’s opinion regarding gang retribution, where the expert was familiar with the associate and had a credible basis for opining that the associate was refusing to testify for fear of gang retribution. (Id. at pp. 152-153.)

In such cases, however, it would be error to give Alternative B of CC 320 without language limiting the jurors’ consideration of the refusal to the gang expert’s testimony. Without such limiting language, CC 320 creates a risk the jury will draw an unsupported evidentiary inference. “[B]efore a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.” (People v. Bell (2004) 118 Cal.App.4th 249, 255, internal citation and punctuation omitted, [jury left to speculate on what it was supposed to infer from defense counsel’s delayed disclosures during discovery].)

Accordingly limiting language should be added to CC 320. People v. Sisneros, supra, 174 Cal.App.4th 142, 152 [“Not only did the trial court specially instruct the jury that Luna’s conduct was to be considered solely as support for the gang expert’s opinion, but it also instructed more generally that evidence admitted for a limited purpose could be considered only for that purpose. Further, the jury was not to speculate as to why “a person other than defendant was or may have been involved in” the charged offenses was not being prosecuted, and the jury was not bound to accept an expert opinion, but “must consider the strengths and weaknesses of the reasons” supporting the opinion.”].)

Sample Instructional Language

You may only consider the witness’s refusal to testify for the limited purpose of assessing the credibility of witness   _________ {insert name of gang expert}. Do not consider it for any other purpose.

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Trial Counsel Has Duty to Request Clarification or Modification of “Otherwise Correct” Instruction but Instruction Which Is “Incorrect in Law” May Be Reviewed on Appeal Without Objection Below

In People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11 the attorney general contended that the defendant forfeited any objection to various instructions because he failed to object to them in the trial court.

The CSC responded by differentiating between an instruction which is “incorrect in law” — which does not require an instruction below – and an “otherwise correct instruction” for which trial counsel failed to seek modification or clarification:

Where, however, a defendant asserts that an instruction is incorrect in law an objection is not required. [Citation.].) We apply this principle to all such instructional claims except to those where we explicitly conclude that defendant’s failure to seek       modification or clarification of an otherwise correct instruction resulted in forfeiture.

Hence, appellate counsel must explain why the challenged instruction is not “otherwise correct” absent the modification or clarification.

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Impact of Defendant’s Inability to Remember His Commission of the Offense on Whether He Should be Executed.

Madison v. Alabama (17-7505) will be argued in the United States Supreme Court on October 2, 2018.

 

Questions presented:

“1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017) (Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring).

“2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?”

 

Counsel are Bryan A. Stevenson, Randall S. Susskind & Angela L. Setzer of the Equal Justice Initiative in Montgomery.  The USSC is reviewing a one-page order by a state trial judge rejecting Madison’s claim of incompetency to be executed, an order which was not appealable under state law.  Full-text documents are at http://www.scotusblog.com/case-files/cases/madison-v-alabama/.

 

While Madison presents an issue of competency to be executed, the same considerations could make the defendant’s inability to remember the offense a factor in mitigation even if it is not a sufficient basis to find him incompetent. Hence, argument and/or pinpoint instructions could be appropriate under such circumstances.

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Preview of CALCRIM September 2018 Revisions

The following proposed revisions – which were published via an invitation to comment (May 22- June 22, 218) are scheduled to be adopted on September 20, 2018. See http://www.courts.ca.gov/documents/CALCRIM-2018-01.pdf

 

Instruction Number

Instruction Title
580 Involuntary Manslaughter
800 Aggravated Mayhem
1520 Attempted Arson
1600 Robbery
1820 Unlawful Taking or Driving of Vehicle
2181 Evading Peace Officer: Reckless Driving
2350, 2351, 2361,

2363

 Marijuana instructions related to H&S 11360
NEW 2364 Felony Penalty Allegations for H&S 11360 offenses
2352 Possession of Marijuana for Sale (H&S 11359)
2370 Marijuana Cultivation (H&S 11358)
2375 & 2376 Simple Possession (H&S 11357)
NEW 3415 Lawful Use Defense (H&S 11362.1)
2330, 2384, 2390,

2391, 2392, 2393,

2410, 2748, 3403,

3406, 3412, 3413

 Marijuana Cannabis: nomenclature and clerical changes only
DELETED:

2360, 2362, 2377

 Infractions after Prop 64
3550 Pre-Deliberation Instructions

 

 

 CC 580 Inherently Dangerous Assaultive Felonies

 

To be added to citations:

People v. Bryant (2013) 56 Cal.4th 959, 964; People v. Brothers (2015) 236 Cal.App.4th 24, 33-34.

 

CC 800: Delete LIO reference

Battery with Serious Bodily Injury PC § 243(d); People v. Ausbie

(2004) 123 Cal.App.4th 855

 

CC 1520 Attempted Arson

 

To be added to citations:

People v. Rubino (2017) 18 Cal.App.5th 407.

 

CC 1600 Robbery

 

To be added to citations:

People v. Mullins (2018) 19 Cal.App.5th 594, 603 re: constructive possession of funds in victim’s bank account.

 

CC 1820 Unlawful Taking or Driving Vehicle

 

To be added to citations:

People v. Page (2017) 3C5th 1175, 1183-87 re vehicle value must exceed $950.

 

CC 2181 Evading Police Officer

 

To be deleted:

Wanton disregard element.

 

CC 2320, CC 2350, CC 2351, CC 2352, CC 2360, CC 2363, CC 2370, CC 2375, CC 2376, CC 2384, CC 2390, CC 2391, CC 2392, CC 2393, CC 2410, CC 2748, CC 3403, CC 3406, CC 3412, CC 3413

 

Language to be changed, inter alia:

“marijuana” to “cannabis”

 

CC 2364 New:

Felony Cannabis Allegations (H & S section 11360(a)(3)

 

CC 3415 New:

Lawful Use Defense (H&S 11362.1)

 

CC 3550 Language to be added re: issues from separate trials:

 

[Sometimes issues are tried in separate trials. The only issue in this trial is whether the People have proved the charge[s] of <insert description of charge[s]> [in Count[s] _  _]. Do not speculate about whether the defendant was already found guilty for (his/her) conduct or may be found guilty in the future in another trial. Do not consider any potential punishment.]

 

 

To Be Deleted:

 

CC 2360 Transportation of Marijuana (less than 28.5 grams)

 

CC 2362 Offering to Transport Marijuana (less than 28.5 grams)

 

CC 2377 Simple Possession of Concentrated Cannabis

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Juror’s “Common Sense and Experience” May Not Override Presumption of Innocence

CC 105 and CC 226 — which tell the jurors to rely on their “common sense and experience” regarding their consideration of evidence – have been approved in an appellate ruling. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1241; see also People v. Centeno (2014) 60 Cal.4th 659, 669 [“jurors may rely on common knowledge and experience in evaluating the evidence”].)

 

In particular it has been held that jurors may rely on their own common sense and good judgment in evaluating the weight of expert testimony presented to them. (People v. Venegas (1998) 18 Cal.4th 47, 80; see also People v. Stoll (1989) 49 Cal. 3d 1136, 1157; People v. Webb (1993) 6 Cal. 4th 494, 524 [laser procedure for visualizing latent fingerprints not subject to Kelly test because the familiar image of the fingerprint makes reliability of the process readily apparent]; People v. Clark (1993) 5 Cal. 4th 950, 1017-1019 [“blood-spatter” tests not subject to Kelly requirements because it is common knowledge that inferences can be drawn from spatter patterns of blood expelled from the human body].)

 

However, jurors should not be allowed to use their common sense as a standard for deciding whether or not the defendant is guilty. Defining reasonable doubt in terms of “common sense” has been held to be reversible error by the California Supreme Court:

 

It is sufficient to say, however, that the phrase “common sense” is about as uncertain as any phrase in the language. When one speaks of common sense, he generally means his own sense; and there is no warrant for the unnecessary use of such a term when there is apt language to express the idea of reasonable doubt which has been frequently approved and pointed out as the language proper to be used. For this reason the judgment must be reversed.

(People v. Paulsell (1896) 115 Cal. 6, 12; compare People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 840-841[“It is not reasonably likely that prospective jurors believed that, if selected, they could rely on common sense that exceeded the bounds of reason in reaching a verdict.”].)

While the CALCRIM instructions do not specifically tell the jurors that they may rely on common sense vis a vis the question of reasonable doubt, they don’t tell the jurors not to do so. Moreover, CC 105 and CC 226 urge jurors to rely on common sense and experience in deciding “whether testimony is true and accurate.” In most trials the truth and accuracy of the witnesses is directly tied to the question of proof beyond a reasonable doubt. As the Court recognized in Daveggio and Michaud “[c]ommon sense may provide the premise upon which reason operates.” (Ibid.) Thus, without further instruction jurors could conclude that the standard CALCRIM instructions allow them to rely on their common sense to override the presumption of innocence.

 

In sum, supplemental instruction and/or argument of counsel may be appropriate to assure that the jurors understand the proper role of common sense in their deliberations.

 

Sample Instruction      

 

Even if your common sense suggests to you that the defendant is guilty, you must still presume that the defendant is innocent and vote to acquit unless the prosecution has proved him guilty beyond a reasonable doubt.

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Witness Credibility: Expected Benefit from Prosecutor

Nevada capital murder conviction and death sentence vacated because prosecution failed to disclose, inter alia evidence that the key prosecution witness expected a benefit from the prosecution in exchange for his testimony. (Browning v. Baker (9th Cir. 2017) 875 F.3 444.)

 

Brady violation resulted from prosecutor’s failure to disclose that the key prosecution witness—who claimed “that he had not been promised anything for his testimony, including any promise of a more lenient sentence on his recent conviction”—knew that the prosecutor at defendant’s trial “was contemplating speaking to [the witness]’s sentencing judge.”  Indeed, as the result of such contact, the prosecutor in the witness’s case changed his sentencing recommendation from five years in prison and the judge granted him probation instead. (Ibid.)

 

Favorable evidence includes that which impeaches a prosecution witness. (Amado v. Gonzalez (9th Cir. 2013) 734 F.3d 936, 948-949.)

 

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.

 

“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend”. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Bagley (1985) 473 U.S. 667, 676 [105 S.Ct. 3375, 3380, 87 L.Ed.2d 481, 490].)

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Witness Credibility: Membership in Rival Gang

California state conviction for first degree gang murder vacated because the prosecution failed to disclose that its key witness “had pleaded guilty to committing a robbery, that he was on probation for that offense [at the time of defendant’s trial], and that [he] had been a member of the Piru Bloods,” who were rivals of defendant’s gang, the Crips. (Amado v. Gonzalez (9th Cir. October 30, 2013) 734 F.3d 936.)

 

“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend”. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Bagley (1985) 473 U.S. 667, 676 [105 S.Ct. 3375, 3380, 87 L.Ed.2d 481, 490].)

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Dog Tracking Evidence: Limitations of CALCRIM 374

CC 374 includes the following language:

 

Before you may rely on dog tracking evidence, there must be:

 

  1. Evidence of the dog’s general reliability as a tracker;

AND

  1. Other evidence that the dog accurately followed a trail that led

to the person who committed the crime. This other evidence does

not need to independently link the defendant to the crime.

 

In deciding the meaning and importance of the dog tracking evidence,

consider the training, skill, and experience, if any, of the dog, its trainer,

and its handler, together with everything else that you learned about the

dog’s work in this case.

 

Furthermore, the CC 373 Bench notes state that “whenever they are

used to prove the identity of a defendant.” [Citation to People v. Malgren (1983) 139 Cal.App.3d 234, 241.]

 

There are two concerns with this CALCRIM instruction and Bench Note.

 

First, CALCRIM fails to acknowledge that dog tracking evidence is subject to foundational scrutiny before it may be presented to the jury. As Malgren observed, there are “stringent foundational requirements which must be met before such evidence is admissible at all….” (Ibid; see also People v. Mitchell (2003) 110 Cal.App.4th 772, 790-794.) Thus, the judge’s duty to instruct does not arise if the evidence is challenged and excluded at a foundational EC 402 hearing. (See e.g., People v. Mitchell, supra, [dog scent evidence was admitted in error]; cf., Aguilar v. Woodford (9th Cir. July 29, 2013) 725 F.3d 970 [First-degree murder conviction vacated because of Brady violation resulting from failure of the prosecution to disclose that the dog had a history of making mistaken scent identifications].)

 

Second, depending on the circumstances, it may be appropriate to separately instruct the jurors on factors not included in CC 374.

 

Sample instruction #1:

In evaluating the accuracy of the dog scent discrimination evidence and the weight, if any, to give this evidence, the facts to consider include, but are not limited to, the following:

  1. The training, proficiency, experience and proven ability, if any, of the dog, its trainer and its handler;
  2. The manner and circumstances surrounding the collection of the dog scent discrimination evidence;
  3. Any evidence on the subject of whether the dog scent discrimination evidence was or was not contaminated; and
  4. The manner and circumstances in which the evidence was presented to the dog and its handler, and the reaction, if any, of the dog, as described by the handler, to the dog scent discrimination evidence.

 

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 (20020) 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.) The CALCRIM instructions affirm the propriety of such instructions. (See e.g., CC 105/CC 226 [witness factors]; CC 330 [child witness factors]; CC 331 [person with developmental, cognitive, or mental disability]; CC 441 [whether solicitation constitutes multiple crimes]; CC 549 [felony murder; one continuous transaction]; CC 1156 [intent to commit prostitution]; CC 1201/CC 1215 [kidnapping: substantial distance]; CC 2110 [manner of driving is factor to consider re: driving under the influence]; CC 2840 [failure to file tax return is factor to consider]; CC 2842/CC 2843 [another factor to consider re: unreported taxable income].)

 

 

Sample Instruction #2:

 

In evaluating the dog tracking evidence the factors for you to consider, if applicable, include, but are not limited to, the following:

  1. Whether or not the handler was qualified by training and experience to use the dog.
  2. Whether or not the dog was adequately trained in tracking humans.
  3. Whether or not the dog has been found reliable in tracking humans.
  4. Whether the dog was placed on the track where circumstances have shown the guilty party to have been.
  5. Whether or not the trail had become stale or contaminated.

CALCRIM 374 fails to include potentially relevant factors regarding dog tracking evidence. The above instruction, which is based on People v. Gonzales (1990) 218 CA3d 403, 407, more specifically alerts the jury to the considerations affecting the weight of such evidence.