All posts by Julie Anne Ines

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Proposed Legislation Regarding Eyewitness Identification Emphasizes the Need for Cautionary Instructions Regarding Pretrial Identification Procedures

The CALCRIM instruction on eyewitness identification does not admonish the jury to consider pretrial identification procedures utilized by the police. It simply tells the jury to consider whether “the witness able to identify the defendant in a photographic or physical lineup?”

 

Proposed legislation in California (Senate Bill No. 923) would provide statutory recognition of how pretrial identification procedures can contribute to inaccurate identifications and wrongful conviction of the innocent:

 

“This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications…. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program.”

 

http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB923

 

The bill explains the need for such a state-mandated program in the following declaration:

 

The Legislature finds and declares the following:

(a) Valid eyewitness identifications are an important piece of evidence for solving crimes and securing rightful convictions. Compliance with best practices improves the reliability of the identification, whereas failing to comply with these recommendations increases the risk of a misidentification and also will make even positive identifications more likely to be rejected in court.

(b) Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California, eyewitness misidentification played a role in every DNA-based exoneration in the state.

(c) Wrongful convictions involving eyewitness misidentification threaten public safety because, when an innocent person is convicted, the real perpetrator remains undetected and could harm others.

(d) Over the past 30 years, a large body of peer-reviewed research has demonstrated that simple systematic changes in the administration of eyewitness identification procedures by law enforcement agencies can greatly improve the accuracy of identifications. These evidence-based practices include blind or blinded administration of identification; instructing the eyewitness that the perpetrator may or may not be present in the procedure; selecting fillers that match the eyewitness’ description of the perpetrator and do not make the suspect noticeably stand out; eliciting a statement of confidence from the eyewitness, in his or her own words, immediately after an identification is made; and recording the eyewitness identification procedure.

(e) Evidence based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of Sciences, the United States Department of Justice and the International Association of Chiefs of Police.

(f) In 2008, the California Commission on the Fair Administration of Justice issued recommendations for law enforcement to adopt evidence-based eyewitness identification practices. While some individual jurisdictions have implemented these procedures, there is currently no uniform statewide use of best practices. Without consistent policies throughout the state, justice will vary by jurisdiction.

 

In light of this legislative declaration an instruction such as one of the following samples — which go beyond CC 315 — would seem to be appropriate:

Alternative a:

In weighing an eyewitness identification made by a witness, consider any pretrial procedures which may have suggested to the witness that the defendant should be chosen.

Alternative b:

Unless the identification made in court resulted from the observations or perceptions of the witness during the commission of the crime rather than being the product of an impression gained during the pretrial procedures, the in-court identification must not be given any weight. The ultimate issue of the trustworthiness of an in-court identification is for you to decide.

[Cf. New Jersey Model Jury Charges – Criminal Chap. 1 (II) Other Non-2C Charges: [Identification] & 4 (New Jersey ICLE 4th ed. 1997).]

Alternative c:

You should also consider the circumstances of the earlier identification that occurred outside of court. For example, consider how that earlier identification was conducted, and how much time passed after the alleged crime before the identification was made.

[Source: 6th Circuit Pattern Instructions (1991) 7.11, & 3.]

Alternative d:

You may also consider the circumstances surrounding the later identification itself including, for example, the manner in which the Defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the witness’s identification of the Defendant.

[Source: 11th Circuit Pattern Jury Instructions (2003) SI 3, & 3.]

Alternative e:

You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant.

[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.

[You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with [his] [her] identification at trial.]

[Source: 8th Circuit Model Instructions (2000) 4.08, & 4-7.]

The following sample points and authorities, from FORECITE 315.1.1 Inst 9 provide further support for such an instruction:

The risk of inaccuracy and error in eyewitness identification evidence has long been recognized. (See e.g., United States v. Wade (1967) 388 US 218, 228-229 [87 SCt 1926, 1932-1933; 18 LEd2d 1149]; People v. Whalen (NY 1983) 59 NY2d 273, 278 [464 NYS2d 454; 451 NE2d 212].) “Of the first 100 wrongful convictions proven by DNA technology, over 80 percent relied to an important extent on sincere, confident, mistaken eyewitnesses.” (“2 Stories of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), p. 24 [citing “Actual Innocence,” by Jim Dwyer, Barry Scheck and Peter Neufeld (Doubleday, 2000)].)

A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. (United States v. Wade, supra, 388 US at 228; see also e.g., Dispensa v. Lynaugh (5th Cir. 1988) 847 F2d 211, 220 [standing behind a suspect was suggestive]; Williams v. Armontrout (8th Cir. 1989) 877 F2d 1376 [improper show-up procedure].)

Post-event experiences and information can “dramatically affect” memory of the original event. (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §3-4, p. 54; see also Doyle, “2 Stories Of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), pp. 24-27 [discussing eyewitness testimony as “contaminated trace evidence” ]; People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) Hence, it is crucial to discover any post-event influence, including discussions with the police and pretrial identification procedures, to “learn how the witness came to construct and believe in the current version.” (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §3-4, p. 57; see also Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 3, “Preliminary Consideration.” )

Pretrial identification procedures can have a dramatic impact on the in-court identification. For example, cues in identification procedures or methods of questioning may affect the accuracy of an eyewitness identification. (See People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.)  Aside from the selection of distracters to include in a lineup or photo spread, another important consideration is the instructions given to the witness. It is generally agreed that it is a bad idea to explicitly lead a witness to believe that a suspect is in the lineup (“we have a suspect” ). It is far better to suggest that the actual offender might be absent from the lineup (“he may or may not be there” ). (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §4-6, p. 82.)

“… [A]n eyewitness is particularly likely to accept a misleading hint concerning an identification proceeding when the source of the hint is someone whom the eyewitness has some reason to believe is relatively expert concerning the situation. Classically, this situation is created when a police officer who the witness knows has been involved in an extensive investigation suggests that the officer’s favorite candidate is in a lineup.” (Ibid.)

It follows logically that where there has been a lineup or other pretrial identification procedure, the trier of facts should also be permitted to consider the suggestiveness of that procedure, and the extent to which it may have influenced the witness’s present identification, for “it is a matter of common experience that, once a witness has picked out the accused at the lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may … for all practical purposes be determined there and then, before the trial.” (United States v. Wade, supra, 388 US at 229; Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §4-5(b), p. 81 [one study concluded that eyewitnesses who publicly stated their choice stayed with that choice, even if incorrect, 78% of the time]; Williams & Hammelmann, Identification Parades, Part 1 [1963] Crim.L.Rev. 479, 482.)

“Where a witness testifies at trial regarding an identification of the accused, whether that testimony describes an in-court identification or a pretrial identification procedure, the trier of facts must be permitted to consider whether such testimony is worthy of belief, or whether it is lacking in reliability due to the suggestiveness of that identification procedure or of some other procedure employed prior thereto. To that end, the trier of fact may properly be presented with proof relevant to the suggestiveness of any such procedures. ‘This includes evidence of pre-lineup and post-lineup suggestions as well as all the factors which enter into the determination of fairness of the lineup conduct, the photo identification procedures, and the supporting and negating factors of independent source or reliability.’ ” (Sobel, Eyewitness Identification, (2nd Ed. 1984, West) §9.3, p. 9-13.)

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Summary of New and Revised CALCRIM Instructions Effective March 2, 2018

In this post Preview of CALCRIM March 2018 Revisions the proposed revisions were previewed. Effective March 2, 2018 the Judicial Council, formally approved most of these changes which are now included in the March 2018 version of CALCRIM. See —

 

https://jcc.legistar.com/View.ashx?M=F&ID=5801835&GUID=F9FFF5C1-5F35-424B-A885-FFE43359A181

 

The following new instructions were added:

NEW 377 Presence of Support Person/Dog
NEW 2102, 2110, 2114, 2125, 2126 New DUI Crimes When Driving With “Passengers for Hire” as well as necessary cross-referenced instructions
NEW 2765 Misappropriation of Government Funds
NEW 3001, 3002 Failure to Appear While on Own Recognizance Release; Failure to Appear While on Bail

 

The following instructions and/or accompanying bench notes/authority were revised:

332, 360 Expert Witness Testimony, Statements to an Expert
359 Corpus Delicti
840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition
1002, 1032 Rape of Intoxicated Woman or Spouse, Sodomy of Intoxicated Person
1300 Criminal Threat
1850, 2100, 2101, 2110, 2111, 2112, 2125, 3100 Instructions With Potential Issues Regarding Bifurcated Trials
2521 Carrying Concealed Firearm Within Vehicle

 

SUMMARY OF NEW INSTRUCTIONS

 NEW CC 377, Presence of Support Person/Dog

This instruction is based on dicta in People v. Chenault (2014) 227 Cal.App.4th 1503, 1517–1518, that giving such an instruction is a “preferred practice” to minimize potential prejudice. See PC 868.4 and PC 868.5.

 

NEW CC 2102 and 2114, with revisions to related CC 2100, 2101, 2110, 2111, 2112, 2125, and 2126 

Effective July 1, 2018 Vehicle Code sections 23152 and 23153 will include new violations for driving with .04 percent or more blood alcohol content with a passenger for hire. CC 2102 and CC 2114 cover these new violations.

 

NEW CC 2765, Misappropriation of Public Money

In light of the appellate court’s criticism of  CALJIC No. 7.26.1 in People v. Spaccia (2017) 12 Cal.App.5th 1278, 1291, CALCRIM added an instruction that encompasses the provisions of Penal Code sections 424(a)(1–7). 

 

NEW CC 3001 and 3002, Failure to Appear While on Bail, Failure to Appear While on Own Recognizance Release 

CALCRIM added these instructions which apparently were drafted by Deputy District Attorney Craig Fisher of San Diego County.

 

REVISIONS TO EXISTING CALCRIM INSTRUCTIONS

CC 332: ADDED TO “AUTHORITY” 

Citation to People v. Sanchez (2016) 63 Cal.4th 665, 684-686; People v. Vega-Robles (2017) 9 Cal. App. 5th 382, 416 re: Inadmissible Case-Specific Hearsay Not Basis for Expert Testimony 

 

CC 360: Same as CC 332. 

 

CC 359: REVISED BENCH NOTES: Instructional Duty 

Re: sua sponte duty to instruct on corpus delicti whenever an accused’s extrajudicial statements form part of the prosecution’s evidence unless the statement was made during the commission of the crime per People v. Howk (1961) 56 Cal.2d 687, 707 and People v. Carpenter (1997) 15 Cal.4th 312.) 

 

CC 840: ADDED DEFINITION OF “DATING RELATIONSHIP” 

[The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement [independent of financial considerations].]

 

CC 1002: 

REVISED BENCH NOTES

1. Defenses—Instructional Duty

Re: People v. Lujano (2017) 15 Cal.App.5th 187, 192-193 [reasonable belief that the person was capable of consent. 

 

2. ADDED TO “AUTHORITY” 

“Prevented From Resisting” Defined:  People v. Lujano (2017) 15 Cal.App.5th     187, 192-193 [CALCRIM 1032 has correct definition]; People v. Giardino (2000) 82 Cal.App.4th 454, 465–466. 

 

3. ADDED TO “AUTHORITY” 

Reasonable Belief in Capacity to Consent: People v. Lujano (2017) 15 Cal.App.5th 187, 191-192 People v. Giardino (2000) 82 Cal.App.4th 454, 471-472. 

 

CC 1032:   SAME AS 1002 

 

CC 1300:   ADDED TO “AUTHORITY” 

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422: People v. Gonzalez (2017) 2 Cal.5th 1138, 1147. 

 

CC 1850:   

1. REVISED BENCH NOTES 

Deleted citation to a discussion of People v. Bouzas (1991) 52 C 3d 467 re: bifurcation of, and defense stipulation to, prior convictions.

 

Added cross-reference to CC 3100 for non-bifurcated trials and CC 3101 for bifurcated trials. 

 

2. REVISED RELATED ISSUES 

Defense Stipulation to Prior Convictions

Added citation to People v. Bouzas (1991) 53 Cal.3d 467, 478–480 [prior conviction and incarceration requirement of Penal Code section 666 is a sentencing factor for the trial court and not an element of a section 666 offense] and People v. Stevens (1996) 48 Cal.App.4th 982, 987. Thus, defendant may stipulate to the prior and must not be disclosed to the jury unless otherwise relevant. (People v. Hall (1998) 67 Cal.App.4th 128, 135.) 

 

3. REVISED RELATED ISSUES 

Added: 

Motion for Bifurcated Trial

Either the defendant or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra, 231 Cal.App.3d at p. 90.) 

 

 CC 2100, CC 2101, 2110, 2111 AND 2112:  REVISED “RELATED INSTRUCTIONS” 

Added: 

Related Instructions

CALCRIM No. 2101.

CALCRIM No. 2125.

CALCRIM No. 2126. 

 

 CC 2125: 

  1. REVISED BENCH NOTES 

Instructional Duty

Added reference to judge’s sua sponte duty to instruct on proof of alleged prior convictions.

Added citation to People v. Burris (2005)34 Cal.4th 1012, 1016, fn. 3 [prior convictions are a sentencing factor for the trial court and not an element of the offense].

Added cross-reference to CC 2126 and CC 3100, Bench Notes. 

 

  1. REVISED RELATED ISSUES 

Added discussion of: Defense Stipulation to Prior Convictions re: defendant’s right     to stipulate and non-disclosure of the prior to the jury unless it is otherwise admissible per People v. Hall (1998) 67 Cal.App.4th 128, 135.

 

  1. REVISED RELATED ISSUES

Motion for Bifurcated Trial

Either the defendant or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9 Cal.4th 69, 77–78; People v. Cline (1998) 60 Cal.App.4th 1327, 1334–1336; People v. Weathington, supra, 231 Cal.App.3d at p. 90.) 

 

CC 2521: 

1. REVISED FINAL PARAGRAPH OF INSTRUCTION AND BENCH NOTES 

Added reference to PC 25610. 

 

REVISED BENCH NOTES

2. REVISED RELATED ISSUES – SAME AS CC 2125

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Party With Burden of Proof Loses When the Fact Finder is “On the Fence”

Placing any burden at all on the defense, however slight, can be a “game changer” because such a burden requires uncertain or undecided jurors to side with the prosecution instead of the defense. In other words, when the fact finder is uncertain the unburdened party “‘must win.'[Citation.]” (People v. Jackson (2014) 58 Cal. 4th 724, 793-94, Liu, J., conc. and dis. opn; see also Medtronic, Inc. v. Mirowski Family Ventures, LLC (2014) 134 S. Ct. 843, 849-50 [patentee who has burden of proof would lose an infringement action if “the evidence being inconclusive, he failed to prove infringement.”].) Thus for example, “an error cannot be found harmless under Chapman when a reviewing court is not convinced but is genuinely unsure that there is a reasonable possibility that the error affected the verdict. The burden is on the state, not the defendant, to dispel the uncertainty.” (People v. Jackson, supra,  58 Cal. 4th at 793-94, Liu, J., conc. and dis. opn.).

 

Obviously, in a closely balanced case “‘the allocation of the burden of [proof] … can be outcome determinative …. [Citations.]’”(People v. Jackson, supra,  58 Cal. 4th  at p. 793, quoting Gamache, 562 U.S. 1083, 1084, 131 S.Ct. 591, 593 (statement of Sotomayor, J; see also People v. Thomas (2013) 218 Cal.App. 4th 630, 646 [judgement reversed because reviewing court could not be certain the error was harmless]; Foxworth v. St. Amand (1st Cir. 2009) 570 F.3d 414, 436[ If the habeas court is uncertain whether the state has met its burden to show an error was harmless “the petitioner must win.” (internal citations and punctuation omitted)];  Farr v. County of Nevada (2010) 187 Cal.App. 4th 669, 682 [“Equal probability … does not satisfy a burden of proof.[citation]”].)

 

It follows that, in a criminal case, the jurors must understand that a juror must vote not guilty if he or she is “on the fence” – i.e., unsure or uncertain – that the prosecution has proved any element of the charge.

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CC 1191 Is Anomalous and Confusing When Evidence of the Uncharged Offense Consists Solely of the Victim’s Testimony

The concurring opinion of Justice Perren in People v. Gonzales (2017) 16 Cal. App. 5th 494, 505-07 identified a serious problem with CC 1191 when the “the proffered evidence of the uncharged offenses consists solely of the victim’s testimony.” (Id. at 507.) The problem results from anomalous language in the instruction which allows the jurors to find that an ultimate factual element of the charge was proved by a preponderance of evidence instead of proof by a reasonable doubt:

 

There are three categories of “other” sex offenses that may be admitted as evidence of a defendant’s propensity to commit charged sex offenses: (1) uncharged offenses committed against persons other than the victim; (2) uncharged offenses committed against the victim; and (3) other offenses that are charged in the same case. (Evid. Code, §§ 1101, 1108.) For the first two categories, the jury is generally instructed that the uncharged offense or offenses may be considered only if they are proven by a preponderance of the evidence. (CALCRIM No. 1191A; People v. Reliford (2003) 29 Cal.4th 1007, 1015–1016 [130 Cal. Rptr. 2d 254, 62 P.3d 601] [construing CALJIC No. 2.50.01, which is substantially identical to former CALCRIM No. 1191].) The same was true for the third category until 2012, when our Supreme Court implicitly recognized that charged offenses offered as propensity evidence must be proven beyond a reasonable doubt. (People v. Villatoro (2012) 54 Cal.4th 1152, 1167–1168 [144 Cal. Rptr. 3d 401, 281 P.3d 390] (Villatoro); People v. Cruz (2016) 2 Cal.App.5th 1178, 1186 [206 Cal. Rptr. 3d 835] (Cruz); CALCRIM No. 1191B.) Why? Because it would be anomalous to tell a jury that in proving one charged offense, it may consider evidence of another charged offense shown by a preponderance of the evidence, despite acquitting of that offense because it was not persuaded of its commission beyond a reasonable doubt. (Cruz, at p. 1186.) (16 Cal. App 5th at 505, Perren, J., concurring.)

 

In Gonzalez, Justice Perren explained how a problem similar to the one identified by Villatoro and Cruz with respect other charged offenses occurs when alleged uncharged offenses are based solely on the victim’s testimony:

 

In my view, a jury instruction explaining the admissibility of uncharged offenses against the victim as proof of propensity under Evidence Code section 1108 must resemble the instruction used in Villatoro, supra, 54 Cal.4th 1152 (i.e., CALCRIM No. 1191B) where, as here, the proffered evidence of the uncharged offenses consists solely of the victim’s testimony. L.W. is either credible, or she is not. Inviting the jury to apply a lesser standard of proof as to her credibility regarding uncharged offenses, and then consider that evidence as proof of her credibility beyond a reasonable doubt as to the charged offenses, confuses the issue and threatens to undermine confidence in the result.

 

As explained in in People v. Nicolas (2017) 8 Cal. App. 5th 1165, 1176), to warrant an instruction on an “uncharged act” there must be an uncharged act. If the purported “uncharged act” is actually an integral part of the charged act then the jury must not be told that the uncharged act need only be  proved by a preponderance of the evidence: “The trial court plainly committed error by instructing the jury regarding uncharged acts using CALCRIM No. 375; there were, in fact, no uncharged acts admitted into evidence.” (Id. at 1178.)

 

As the Nicolas court observed this is “the same type of instructional error that the appellate court dealt with in Cruz. By telling the jury that the defendant’s alleged phone use “immediately prior to the collision could be proven under a preponderance of the evidence standard [the instruction] had the effect of lowering the prosecution’s burden of proof because this was the same evidence that the prosecution was using to prove gross negligence. Even though the jury was also told (through other jury instructions and argument) that it needed to find gross negligence (and ultimately defendant’s guilt) under a reasonable doubt standard, the two competing standards of proof were addressing the same evidence. The court’s instructional error not only presented the jury with a nearly impossible task, but as a reviewing court, we have absolutely no way of knowing which of the two competing standards of proof the jury may have applied to the same evidence.” (Nicolas at 1181-82.)

 

In sum, when uncharged offenses are based solely on the victim’s testimony the jury should be given a modified version of CC 1191B making it clear that the uncharged act mut be proved beyond a reasonable doubt.

 

Unless such a modification is made, the instructions will abridge the defendant’s state (Art I, §§7, 15 and 16) and federal (6th and 14th amendments) constitutional rights to due process and trial by jury by reducing the prosecution’s burden of proof in violation of the following constitutional principles:

 

(1) Any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)

 

(2) The jury instructions must not reduce the prosecution’s burden of proof as to any essential fact or element of the charge. (See Carella v. California (1989) 491 US 263, 265-66.)

 

(3) Instructions on the presumption of innocence and the prosecution’s burden of proof must not be conflicting or contradictory.

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CC 2300 — Transportation of a Controlled Substance — Does Not Adequately Explain the Specific Intent Element of the Offense

Effective January 1, 2014, Health and Safety Code section 11379 was amended to limit the meaning of “transports” under the statute to transportation “for sale.” The jury instruction for section 11379 offenses was modified to reflect the 2014 amendment to the statute by inserting the words “for sale” after the word “transported” — “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (… transported for sale …) a controlled substance; … .” (CC 2300 [Aug. 2014 update].) The term “transports” is defined in the form instruction, as is the word “selling,” but there is no separate gloss on the phrase “for sale.” (CC 2300.)

 

However this amendment fails to adequately instruct the jury on the elements of the charge because it fails to “explicitly and separately explain the ‘for sale’ aspect of the offense as a separate element….” (People v. Lua (2017) 10 Cal. App. 5th 1004, 1013.) Moreover, CC 2300 does not conform to the instructions for other offenses with an identical “for sale” element, e.g. — “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant [unlawfully] possessed a controlled substance; [¶] … .[¶] 4. When the defendant possessed the controlled substance, (he/she) intended (to sell it/ [or] that someone else sell it) … .” (CC. 2302, CC 2352; see also CC 2381, CC 2391 [regarding sale of controlled substances to minors].)

 

In sum, “it is at best questionable whether, standing alone, the instruction adequately explains the specific intent element of the offense… [U]nless and until the standard instruction is amended, trial courts should consider modifying the instruction to be more explicit regarding the required intent.” (Lua, supra, at 1016.)

 

Thus, instead of simply requiring “transportation for sale” an additional element should be added to the enumerated elements of CC 2300 such as the following:

 

Sample Instruction 1:

 

When the defendant transported the controlled substance (he/she) intended (to sell it/ [or] that someone else sell it).

 

Sample Instruction 2 [See People v. Miranda (2008) 161 Cal. App. 4th 98, 109-10]:

 

When the defendant transported the controlled substance, he intended to sell it.

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Proof of Prior Convictions: The Constitutional Right to a Jury Trial “Sweeps More Broadly than Our Case Law Previously Recognized”

People v. Gallardo (2017) 4 Cal.5th 120 (rehearing denied 1/24/18) determined that the trial court violated the defendant’s Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying the defendant’s prior assault conviction that had not been established by virtue of the conviction itself:

 

“We today hold that defendant’s constitutional right to a jury trial sweeps more broadly than our case law previously recognized: While a trial court can determine the fact of a prior conviction without infringing on the defendant’s Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction.  (4 Cal.5th at 138.)

 

Now a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the “nature or basis” of the prior conviction based on its independent conclusions about what facts or conduct ‘realistically’ supported the conviction. The court’s role is limited to identifying those facts that were established by virtue of the conviction itself—that is, “facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (4 Cal.5th at 136.)

 

The Court expressly disapproved People v. McGee (2006) 38 Cal.4th 682 — cited with approval by the CALCRIM 3100, 3101, 3102 and 3103 – which held that the Sixth Amendment permits courts to review the record of a defendant’s prior conviction to determine whether the crime qualifies as a serious felony for purposes of the sentencing laws.

 

The “Disputed Factual Issues” authorities in CALCRIM, including its citation to McGee, should be corrected.

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Double Jeopardy–Issue-Preclusive Effect of Acquittal After Consent to Severance of Multiple Charges into Sequential Trials

“A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous foundation, its finality is unassailable.” (Yeager v. United States, (2009) 557 U.S. 110, 122-23, internal citations and punctuation omitted. Thus, if the jury necessarily resolved a critical issue in favor of the defendant the issue preclusion doctrine protects the defendant against prosecution for any charge for which that issue is an essential element. (Ibid. cf.,  Bravo-Fernandez v. United States (2016) _____ U.S. ______, 137 S. Ct. 352 [double jeopardy did not bar retrial of defendants for bribery based on issue preclusion since the jury’s verdict of guilty to bribery, which was vacated based on instructional error concerning the scope of bribery, was rationally inconsistent with the jury’s verdict of acquittal on related charges of conspiracy and interstate travel, and there was thus no basis to conclude that the jury actually decided that the defendants were not guilty of bribery].)

 

In Currier v. Commonwealth (Va. 2016) 798 S.E.2d 164, cert. granted 10/16/2017 (16-1348) the high court will consider whether the issue preclusion doctrine applies to a situation where the defendant consented to severance of multiple charges into sequential trials.

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Preview of CALCRIM March 2018 Revisions

CALCRIM has proposed new and revised instructions to be effective March 2, 2018 — http://www.courts.ca.gov/documents/2017-11CALCRIM.pdf

 

Below is a brief preview of the coming revisions. After the proposed revisions are formally approved they will be discussed further in a subsequent post.

 

New Instructions

 

CALCRIM No. 377. Presence of Support Person/Dog: PC § § 868.4 and 868.5.

 

CALCRIM Nos. 2102, 2110, 2114, 2125, and 2126. DUI Crimes When Driving With “Passengers for Hire” and related cross-referenced instructions:

 

Instructions addressing the “Uber-DUI” legislation criminalizing driving with 0.04% BA while carrying a passenger for hire and resulting in bodily injury to another person. (VC § 23152(e).)

 

CALCRIM No. 2765. Misappropriation of Government Funds: PC § 424(a)(1-7).

 

CALCRIM No. 3001. Failure to Appear While on Bail: PC § 1320.5.

 

CALCRIM No. 3002. Failure to Appear While on Own Recognizance Release: PC § 1320.

 

Revised Instructions

 

CALCRIM No. 224. Circumstantial Evidence:

 

Revising Bench Note admonishing to give CC 225 and not CC 224 if “intent is the only element proved by circumstantial evidence….”

 

CALCRIM No. 225. Circumstantial Evidence:

 

Revises Bench Note admonishing to give CC 224 and not CC 224 if elements other than intent “rest substantially on circumstantial evidence….”

 

CALCRIM Nos. 332 and 360. Expert Witness Testimony, Statements to an Expert:

 

Adds reference under “Authority” to “Inadmissable Case-Specific Hearsay Not basis fo Expert testimony – People v. Sanchez (2016) 63 Cal.4th 665, 684-686; People v. Vega-Robles (2017) 9 Cal. App.5th 382, 416.

 

CALCRIM Nos. 359. Corpus Delicti:

Revises Bench Notes re Instructional Duty.

 

CALCRIM No. 840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition:

 

Adds definition of “dating relationship” to instruction and reference to PC § 243(f)(10) to “Authority.”

 

CALCRIM Nos. 1002. Rape of Intoxicated Woman or Spouse, Sodomy of Intoxicated Person

 

Deletes Bench Note reference to People v. Giardino (2000) 82 Cal. App.4th 454, 472 [sua sponte duty to instruct]; adds reference to People v. Lujano (2017) 15 Cal.App.5th 187 [no sua sponte duty]. Adds references to Lujano and Giardino re: “reasonable belief in capacity to consent” under “Authority.”

 

CALCRIM No. 1032. Sodomy of an Intoxicated Person (PC 286(I)):

 

Deletes Bench Note reference to People v. Giardino (2000) 82 Cal. App.4th 454, 472 [sua sponte duty to instruct] Adds references to Lujano and Giardino re: “reasonable belief in capacity to consent” under “Authority.”

 

CALCRIM No. 1300. Criminal Threat:

 

Adds to Authority – “threatening hand gestures not verbal threats under PC § 422 – People v. Gonzalez (2017) 2 Cal.5th. 1128, 1147.

 

CALCRIM Nos.1850, 2100, 2101, 2110, 2111, 2112, 2125, 3100.

 

Revises Bench Notes re: Instructions With Potential Issues Regarding Bifurcated Trials.

 

CALCRIM No. 2521. Carrying Concealed Firearm Within Vehicle:

 

Adds PC §25610 [permissible to carry firearm in locked trunk or container in vehicle] to instruction and Bench Notes re “Defenses–Instructional Duty.”

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CC 401 SHOULD EXPRESSLY ADDRESS THE FACT THAT MERE KNOWLEDGE OF THE CRIME IS INSUFFICIENT FOR AIDER AND ABETTOR LIABILITY

CALCRIM 401 correctly states that “being present as the scene of the crime or [failure] to prevent the crime does not, by itself, make [a person] an aider and abettor.” (See People v. Durham (1969) 70 C2d 171, 181; In re Jose T. (1991) 230 CA3d 1455, 1460.)

 

However, the CALCrim language is incomplete because it fails to make it clear that presence and knowledge of the crime is insufficient to establish aiding and abetting liability. (See People v. Lara (2017) 9 Cal. App. 5th 296, 322.) In other words, it is not enough that the defendant was “merely a knowing spectator.” (See People v. Bishop (1996) 44 CA4th 220, 234.)

 

Accordingly, CC 401 should be modified so that the question of knowledge is addressed. (See e.g., sample instructions below; see also FORECITE F 401.6 Inst 2, F 401.6 Inst 12, and F 401.5 Inst 7.)

 

Even though the proposed instructions contained non-calcrim language they may still be required, on request, to the extent that they pinpoint a defense theory which negates an element of the charge. (People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”]; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating defense to burden of proof]; U.S. v. Zuniga (9th Cir. 1993) 989 F.2d 1109 [alibi instruction required even though elements of the charge accurately required the prosecution to prove guilt]; (CALCRIM 220, Related Issues [“A defendant is entitled, on request, to a nonargumentative instruction that direct attention to the defense theory of the case and relates it to the state’s burden of proof.”].)

 

“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.  The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (94) 8 C4th 548, 572; see also FORECITE PG VII(C)(14).)

 

Moreover, “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.”  [Citations and internal punctuation omitted.] (Holmes v. South Carolina (2006) 547 U.S. 319, 324.)

 

Yet, absent an appropriate instruction, the right to present evidence is entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202; see also Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-42.)

 

SAMPLE INSTRUCTIONS

 

Alternative a:

 

If you conclude that the defendant knew about _______’s <insert name of perpetrator> purpose to commit the alleged crime you may consider that fact in determining whether the defendant was an aider and abettor. However, mere knowledge of the perpetrator’s criminal purpose does not, by itself, make him or her an aider or abettor.

 

[Adapted from CC 401, ¶ 4.]

 

Alternative b:

 

*Modify CC 401, paragraph 4, sentence 2 as follows [added language is underlined]:

 

However, the fact that a person is present at the scene of a crime, has knowledge that the [alleged] crime is being committed, or fails to prevent the crime does not, by itself, make him or her an aider and abettor.

 

Alternative c:

 

*Replace CC 401 “mere presence” language with the following:

 

Mere presence at the scene of a crime, knowledge that a crime is being committed and failure to take action to prevent the crime are not enough to convict the defendant as an aider and abettor. Even if you have concluded that the defendant was a “knowing spectator” who failed to prevent or report the crime, you may not convict the defendant unless you find that there is additional evidence, above and beyond the defendant’s knowing presence, which, in light of all the circumstances, proves beyond a reasonable doubt that the defendant intended to commit, encourage or facilitate the commission of the crime.

 

Alternative d:

 

*Replace CC 401 paragraph 4, sentence 2 with the following:

 

Mere presence at the scene of the crime and intimate knowledge of the offenses merely make a person an eyewitness and do not, without more, permit conviction of the person as an [aider and abettor of the crime] [accomplice].

 

[Adapted from People v. Lewis (2001) 26 C4th 334, 369; see also People v. Stankewitz (1990) 51 C3d 72, 90.]

 

Alternative e:

 

*Replace CC 401 paragraph 4, sentence 2 with the following:

 

Presence of a person at the location of an alleged crime while the criminal activities are taking place and knowing that they are taking place cannot support a conviction as an aider and abettor. It is extremely imprudent to remain knowingly in the presence of an ongoing crime, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.

 

[Adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092, 1097-98.]

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Confusing Language of CC 121 Regarding Foreign Language Recordings Should Be Clarified

In August 2016 the CALCRIM committee revised CC 121 to provide as follows:

You must rely on the transcript, even if you understand the language in the recording. Do not restranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to the (clerk/bailiff).

Please write a note to the clerk or bailiff if you believe the translation is wrong. [If the recording is partially in English, the English parts of the recording are the evidence.] See https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3

The last bracketed sentence of this instruction was not revised. However, that sentence  may confuse the jurors because it could be read to imply that foreign language parts of the recording are not evidence.

The confusion in the CC language stems from the fact that two different rules apply to transcripts of recordings depending on whether the original recording is in English or a foreign language. A recording in English normally constitutes the evidence of what was said, and a transcript of the recording is used only as an aid in following and understanding the recording. If the recording and the transcript conflict, the recording controls. (People v. Brown (1990) 225 Cal.App.3d 585, 598–599; see also People v. Arancibia (2013) 213 Cal.App.4th 1465, 1471.) However, when the recording is in a foreign language, the English translation controls and is the evidence of what was said. (People v. Cabrera (1991) 230 Cal.App.3d 300, 304.) Any other rule would be “nonsensical” and have “the potential for harm where the jury includes bilingual jurors.” (U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F.3d 352, 355–356; accord, People v. Cabrera, supra, 230 Cal.App.3d at pp. 303–304.)

Accordingly, the final bracketed sentence of CC 121 should be replaced with language that more clearly instructs the jury such as the following which has been adapted from the Ninth Circuit Model Criminal Jury Instructions (Nos. 2.7 and 2.8):

You are about to [hear] [watch] a recording. Parts of this recording are in English and other parts are in the [specify the foreign language] language. A transcript of the recording is being provided.

As to the part[s] of the recording that [is][are] in English the recording itself is the evidence, not the transcript. Thus, as to the English part[s] of the recording, if you hear something different from what appears in the transcript, what you heard is controlling.

As to the part[s]of the recording in ______________[specify foreign language], you must accept the English translation contained in the transcript even if you would translate it differently. Do not restranslate those parts of the recording for yourself or for other jurors. If you believe that the ______________[specify foreign language] part[s] of the transcript [is][are] incorrect or incomplete let me know immediately by giving a written note to the clerk or bailiff.