All posts by Julie Anne Ines

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Generic Pattern Instructions Should Be Tailored to the Facts of the Case

The judge may not properly “refuse[] to tailor [an] instruction to the fact of the case.“ (People v. Hall (1980) 28 C3d 143, 159; see also People v. Falsetta (1999) 21 C4th 903, 924; People v. Fudge (1994) 7 C4th 1075, 1110; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts“ ]; U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286 [buyer-seller instruction should be tailored to facts].)

 

Moreover, the judge is obligated to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (People v. Malone (1988) 47 Cal.3d 1, 49; People v. Whitehorn (1963) 60 Cal.2d 256, 265; People v, Cole (1988) 202 Cal.App.3d 1439, 1446; People v. Bolden (1990) 217 Cal.App.3d 1591, 1597.) “[A] court may give only such instruction as are correct statements of the law. [Citation].” (People v. Gordon (90) 50 C3d 1223, 1275.) This duty requires the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (People v. Fudge (1994) 7 C4th 1075, 1110 [judge must tailor instruction to conform with law rather than deny outright]; see also People v. Falsetta (1999) 21 C4th 903, 924 [“trial court erred in failing to tailor defendant’s proposed instruction to give the jury some guidance regarding the use of the other crimes evidence, rather than denying the instruction outright”]; People v. Coates (1984) 152 CA3d 665, 670-71; People v. Bolden (1990) 217 CA3d 1591, 1597; (People v. Cummings (1993) 4 C4th 1233, 1337; see also People v. Castillo (1997) 16 C4th 1009 [even when a trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly]; People v. Malone (88) 47 C3d 1, 49 [252 CR 525]; People v. Montiel (1993) 5 C4th 877, 942.)

 

This duty to tailor and correct should apply with equal force to generic pattern instructions. See e.g., CC 570 BENCH NOTES, Instructional Duty [“If the victim’s gender identity or sexual orientation raises specific issues concerning whether provocation was objectively reasonable, give an instruction tailored to those issues on request….”]; see also CC 603, 704, 705, 730.)

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Gang Enhancement When Member of Gang Acts Alone in Committing Felony?

Review was granted in People v. Renteria (Jan. 5, 2021, F076973) [nonpub. opn.], review granted 4/14/2021 (S266854) to consider whether the
evidence was sufficient to support the criminal Street gang enhancements imposed under Penal Code section 186.22, subdivision (b).

On 4/21/2021, the court ordered the issues to be briefed and argued in this case limited to the following: When a member of a criminal street gang acts alone in committing a felony, what evidence will suffice to establish the felony was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members”? (Pen. Code, § 186.22, subd. (b)(1); see People v. Albillar (2010) 51 Cal.4th 47, 59-60.)

Review on this issue has also been granted with briefing deferred in:

  • People v. Williams (Jan. 28, 2021, B301325) [nonpub. opn.], review granted 4/28/2021 (S267503)
  • People v. Vidales (Feb. 23, 2021, C088685) [nonpub. opn.], review granted 5/12/2021 (S267864)
  • People v. Castillo (Mar. 23, 2021, B301982) [nonpub. opn.], review granted 6/9/2021 (S268385)
  • People v. Ponce (Mar. 11, 2021, A155368) [nonpub. opn.], review granted 6/9/2021 (S267898)
  • People v. Mendez (Mar. 30, 2021, B305404) [nonpub. opn.], review granted 6/23/2021 (S268538)
  • People v. Cyrus (May 11, 2021, E075271) [nonpub. opn.], review granted 7/14/2021 (S269251)
  • People v. Braggs (May 27, 2021, B301727) [nonpub. opn.], review granted 8/11/2021 (S269678)
  • People v. Mays (June 8, 2021, B302559) [nonpub. opn.], review granted 8/11/2021 (S269376)
  • People v. Prescott (July 16, 2021, D076420) [nonpub. opn.], review granted 9/22/2021 (S270470)
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Jury Misconduct During Deliberations: Use of Juror Declarations

In People v. Flores (2021) 70 Cal.App.5th 100 (Oct. 8, 2021, C089569) Flores was found guilty of voluntary manslaughter, among other crimes, after the jury initially declared it was unable to reach a unanimous verdict. Defendant moved for a new trial based on evidence the jury considered defendant’s sentence in determining the verdict. The jurors’ declarations in support of the new trial motion showed the jury was at an impasse between second degree murder and voluntary manslaughter and shortly after discussing the possibility defendant would “walk” if it were to hang, the jury found defendant guilty of voluntary manslaughter. The trial court denied defendant’s new trial motion, finding inadmissible any evidence of the jury’s deliberations regarding punishment and that discussing punishment during deliberations is not misconduct.

The appellate court held: (1) the trial court erred in finding inadmissible the entire contents of the jurors’ declarations submitted in support of the new trial motion; (2) consideration of the admissible portions of the jurors’ declarations establish misconduct occurred, raising a rebuttable presumption of prejudice; and (3) the People failed to rebut the presumption of prejudice.

Flores illustrates the not uncommon tension between the general assumption that jurors’ follow the judge’s instructions and the reality that, in certain situations, jurors will be tempted to disobey the instructions.

In cases where it is believed that one or more jurors committed misconduct during the deliberations Evidence Code section 1150 is of paramount importance because it typically determines “what evidence is admissible.” (People v. Flores, supra at ____.)

Evidence Code section 1150 (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”

 

“ ‘This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved.”’ ” (People v. Gonzales (2012) 54 Cal.4th 1234, 1281.) Juror’s statements “ ‘must be admitted with caution,’ because ‘[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.’ [Citation.] But statements made by jurors during deliberations are admissible under Evidence Code section 1150 when ‘the very making of the statement sought to be admitted would itself constitute misconduct.’ ” (People v. Cleveland (2001) 25 Cal.4th 466, 484.)

For example, in Flores “[w]hy a juror did or did not change his or her vote, and his or her subjective understanding of the punishment discussions [were] evidence of internal thought processes and therefore inadmissible. But the statements indicating that sentencing discussions took place among the jurors during deliberations, including how punishment should factor into the verdict for the murder charge, [were] admissible. Such discussions were out loud, heard by all the jurors, and involved information that could have influenced the verdict. This cover[ed] both the evidence of general discussions about punishment and the specific statements made by individual jurors to the entire panel about what should be considered, including D. R.’s statement that he knew, based on his personal knowledge and experience as a correctional officer, defendant would “walk” if the jury were to hang. The statements were not evidence as to the effect these statements had on any juror’s mental processes or why he or she may or may not have changed his or her vote, but rather … objective information the jurors were considering during deliberations.” (People v. Flores, supra at ____.)

Thus, EC 1150 did not prevent the Flores court from holding that — by discussing punishment during its deliberations — the jury failed to obey CALCRIM 101’s admonition to “reach your verdict without any consideration of punishment” and, therefore committed prejudicial misconduct.

Similarly, an agreement among the jurors evidencing a deliberate refusal to follow the court’s instructions is admissible as an “overt act” per EC 1150. (People v. Perez (92) 4 CA4th 893, 905-09.)

For additional discussion of EC 1150 and jury misconduct see PG X(L) Juror Misconduct 

 

Caveat: Cases such as Flores highlight the importance of interviewing jurors after trial, if possible. However, there are roadblocks which counsel may have to overcome such as:

 

–CC 3590

 

—PG X(M) Access To Jurors’ Names And Addresses 

 

— Limitations on Selection of an Anonymous Jury and Access to Juror Names September 14th, 2021

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Questions to Witness by Judge: Cautionary Instruction

RATIONALE: When the judge asks questions of a witness, there is a danger that the jury will place undue emphasis or importance on the question or to the answer elicited, or consider that the question indicates the judge’s view of the evidence. Therefore, a cautionary instruction admonishing the jury not to attach special weight to questions asked by the court may be appropriate.

 

POINTS AND AUTHORITIES: A judge has “has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. The court may not, however, assume the role of either the prosecution or of the defense and it must not convey to the jury the court’s opinion of the witness’s credibility. We reiterate that judicial questioning and comment during witness testimony should be temperate rather than argumentative. [Citations and internal punctuation omitted.] People v. Nieves (2021) 11 Cal.5th 404, 493-94; see also U.S. v. Tilghman (DC Cir. 1998) 134 F3d 414, 421.) “‘The influence of the trial judge on the jury is necessarily and properly of great weight’’ [citations], and jurors are ever watchful of the words that fall from him.” (Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350]; see also U.S. v. Wolfson (5th Cir. 1978) 573 F2d 216, 221 [judge’s words “‘carry an authority bordering on the irrefutable.’ [Citation]”].)

In sum, the trial judge must use caution in questioning a witness and must instruct the jury not to draw inferences from his questioning. (U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726.)

SAMPLE INSTRUCTION # 1:

During the course of the trial I may ask a question of a witness. If I do, that does not indicate I have any opinion about the facts of the case.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 22, p. 5 (1988).]

SAMPLE INSTRUCTION # 2:

During the trial I questioned [certain witnesses] [a certain witness]. Do not conclude that I had, or have, an opinion about the testimony or credibility of that particular witness. You must not consider or be influenced in any way by anything that might suggest I have an opinion about the case. It is your opinion, not mine, that matters. It is you alone who must decide what evidence or witnesses, if any, are credible and what weight, if any, to give the evidence.

[See generally U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726; U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]

SAMPLE INSTRUCTION # 3:

The fact that the Court has asked one or more questions of a witness for clarification or admissibility of evidence purposes is not to be taken by you in any way as indicating that the Court has any opinion as to the guilt or lack thereof of a defendant in this case, and you are to draw no such inference therefrom. That determination is up to you, and you alone, based on all of the facts in this case and the applicable law in these instructions.

[See U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]

SAMPLE INSTRUCTION # 4:

Do not give the testimony of a witness any undue weight or lack of weight simply because I posed a question or questions to that witness. You must consider any questions that I ask and the answers thereto in the same light as any other questions and answers.

SAMPLE INSTRUCTION # 5:

During the trial I asked questions of witnesses called by the parties. Consider that testimony as you would consider any other testimony. Do not assume that answers to my questions were more or less correct or important than answers to questions posed by counsel. Do not assume that because I asked questions that I have any opinion about the case. It is your job, and yours alone, to evaluate the evidence and to decide which witnesses to believe, if any, and how much weight, if any, to given their testimony.

[See U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726.]

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CC 3149: Error to Omit the Requirement That the Defendant’s Act Caused Great Bodily Injury or Death of a Person “Who Was Not an Accomplice to the Crime”

In People v. Morales (2021) 67 Cal.App.5th 326 the court gave a modified version of the CC 3149 which required the jury to decide whether defendant’s act caused great bodily injury to or the death of a person or fetus, but omitted the phrase “who was not an accomplice to the crime.”

 

Following People v. Flores (2005) 129 Cal.App.4th 174, the reviewing court agreed that this was prejudicial error.  PC 12022.53 (d) authorizes an enhancement when the defendant personally and intentionally discharges a firearm and causes great bodily injury or death, “to any person other than an accomplice.” The Attorney General in Flores argued it was harmless error because an “accomplice” means one “chargeable with the same offense as the defendant who is being tried,” and “one cannot be charged as an accomplice to one’s own murder.” The Flores court rejected this argument, noting that this would mean the accomplice exception would never apply to a count charging the accomplice’s murder.

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Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory

When a single act is charged as the basis for the attempted murders of two or more persons, the intent to kill element must be proved independently as to each alleged victim. A so-called “kill zone” instruction is only proper when: (1) the circumstances of the defendant’s attack on a primary target are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm and to kill everyone present to ensure the primary target’s death; and (2) the alleged attempted murder victim who was not the primary target was in that zone of harm (People v. Canizales (2019) 7 Cal.5th 591).

 

In People v. Mumin (2021) 68 Cal.App.5th 36,  the parties disputed the proper standard of review of a trial court’s decision to instruct on this theory: Mumin argued the reviewing court must find that the only reasonable inference from the evidence is that the defendant had the requisite intent; respondent asserted it is sufficient if the reviewing court concludes the evidence supports a reasonable inference that the defendant had the necessary intent, even if an opposite inference is also reasonable. The court agreed with respondent. The evidence was sufficient to warrant a kill zone instruction because defendant fired a number of shots through several doors that police were attempting to enter to arrest him, intending to kill anyone who might be behind either door. In reaching this result the court disagreed with In Re Rayford (2020) 50 Cal.App.5th 754, which concluded that the reviewing court must be convinced that the only reasonable inference from the evidence is that the defendant had the requisite intent.

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Death Penalty Sentencing: Jurors Are Bound by Counsel’s Argument That Lingering Doubt Is Mitigation

At the sentencing phase of a capital case the jury may properly consider evidence of lingering or residual doubt as a mitigating factor. However,

… there is no constitutional right to instructions on lingering doubt. [Citations.] Instructions to consider the circumstances of the crime [citations], together with defense argument highlighting the question of lingering or residual doubt, suffice to properly put the question before the penalty jury. [Citation]. (People v. Streeter (2012) 54 Cal.4th 205, 265-66, internal punctuation omitted); see also People v. Musselwhite (1998) 17 C4th 1216, 1273, [specific instruction on lingering doubt is not required, even on request, because lingering doubt is encompassed within the catch-all factor “k” language.].)

And more recently the Court has continued to reject defense arguments that a lingering doubt should be given whether requested or not. (See People v. McDaniel (Aug. 26, 2021, S171393) [pp. 1737] [“the circumstances of this case do not warrant departure from our precedent holding that the lingering doubt instruction is not constitutionally required. [Citation]”].)

This line of cases is founded on the assumption that the jurors will follow and abide by defense counsel’s argument that lingering doubt as to guilt is a mitigating factor. Thus, if a request for specific instruction (see e.g., F 763.3) ***LINK*** is denied, counsel should be free to make an argument to the jury such as the following:

The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.

 (See also FORECITE F 200.5 Inst 2;  PG VI(C)(10);  PG I(F).)

It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also

 

F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction

 

 

 

In Musselwhite, the court said: “defendant provides no explanation why the factor (k)—derived instruction that was given to the jury—failed to convey the notion of residual doubt in his case.” [Original emphasis.]

Responses to this position could include the following:

  1. Evidence could be presented as to the empirical studies which have proven that jurors do not in fact fully understand the currently utilized penalty phase instructions. (See, PG II(K).)
  2. Since the Supreme Court has concluded that the lingering doubt factor is included within factor “k,” counsel should be free to rely on the Supreme Court’s position during argument. Thus, counsel might argue: “The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.” (See FORECITE PG VI(C)(10); see also PG I(F).) It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also FORECITE F 200.5 Inst 2.)

By promoting a reliable, non-arbitrary, and individualized sentencing determination, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)

 

 

F 763.3 (Factor a) Inst 9 (a-e) Lingering Doubt
F 763.3 (Factor a) Inst 10 Definition Of Lingering Doubt
F 763.3 (Factor a) Inst 11 Lingering Doubt As To Extent Of Defendant’s Guilt
F 763.3 (Factor a) Inst 12 Instruction That Lingering Doubt Is Included In Factor (a) and/or Factor (k

 

 

 

F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction

*Add to CC 200:

If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless it conflicts with my instructions or I sustain an objection to counsel’s argument on that point. Thus, even if there is no specific instruction on the rule argued by counsel, you must treat it as the equivalent of an instruction to be considered and followed, if applicable, along with all the other instructions.

 

 

We have previously held that “`[t]here is no constitutional entitlement to instructions on lingering doubt.’ ( People v. Earp (1999) 20 Cal.4th 826, 903 [ 85 Cal.Rptr.2d 857, 978 P.2d 15].) Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and any other circumstance extenuating the gravity of the crime ( id., factor (k)), together with defense argument highlighting the question of lingering or residual doubt, suffice to properly put the question before the penalty jury.” ( People v. Demetrulias (2006) 39 Cal.4th 1, 42 [ 45 Cal.Rptr.3d 407, 137 P.3d 229].) The court here instructed the jury to consider the circumstances of the crime and any other circumstances extenuating the gravity of the crime. Defense counsel gave a lengthy argument about lingering doubt, in which he directly stated “lingering doubt [is] . . . an aspect of mitigation.” Defendant fails to convince us that the jury was not adequately informed that they could consider lingering doubt as a factor in mitigation.

People v. Hamilton (2009) 45 Cal.4th 863, 948-49

***

 

 

 

( People v. Hamilton, supra, 45 Cal.4th at p. 948, 89 Cal.Rptr.3d 286, 200 P.3d 898.)

The court here instructed the jury to consider the circumstances of the crime and any other circumstances extenuating the gravity of the crime. Defendant presented extensive evidence of lingering doubt as to his state of mind at the time he committed the crime, which was the only disputed issue open to lingering doubt. (Compare with People v. Gay, supra, 42 Cal.4th at pp. 1223–1226, 73 Cal.Rptr.3d 442, 178 P.3d 422 [prejudicial error to exclude lingering doubt evidence contesting defendant’s guilt as shooter when coupled with court’s instruction to jury to disregard defense counsel’s opening statement that it would hear lingering doubt evidence and instruction on conclusiveness of prior guilt jury’s findings].) Defense counsel extensively argued lingering doubt during opening and closing arguments, in which he urged the jury to reconsider defendant’s guilt and his state of mind. Thus, contrary to defendant’s claim, the trial court’s rulings did not remove the concept of lingering doubt from the jury’s consideration.

People v. Streeter (2012) 54 Cal.4th 205, 265-66

 

n the penalty phase, the prosecution and defense introduced the guilt-phase eye-witness testimony and ballistics evidence that McDaniel asserts is relevant to lingering doubt. In closing argument, defense counsel emphasized the ballistics evidence from the gun linked to Harris to suggest that McDaniel did not cause the “mayhem” alone. Defense counsel also referenced inconsistencies and gaps in the testimony of Angel Hill and Derrick Dillard to argue there was insufficient evidence that McDaniel himself created all the “carnage.”

Next, McDaniel argues that the trial court repeatedly instructed the jury that it “must accept” the guilt phase jury’s finding that McDaniel had personally killed Anderson, which left no room for them to consider lingering doubt. Compounding the error of this instruction, he claims, was the prosecutor’s argument that McDaniel had personally killed Anderson, which relied heavily on an appeal to the findings of the prior jury. McDaniel’s reliance on People v. Gay (2008) 42 Cal.4th 1195, 1224, where the trial court instructed the jury that the defendant’s responsibility had been “conclusively proven and that there would be no evidence presented in this case to the contrary, ” is inapposite. In Gay, the error that the trial court’s statements compounded was the trial court’s limitation of evidence related to lingering doubt in the penalty phase. (Ibid.) As discussed above, ample evidence of this lingering doubt was introduced. Moreover, a statement that the jury “must” accept the guilt-phase findings is qualitatively different than a statement that the defendant’s guilt has been “conclusively proven” and that no evidence would be introduced to the contrary. (Ibid.) Nor did the prosecutor’s statements that “the verdicts have significance in this case, ladies and gentleman, ” preclude the jury from considering lingering doubt. These comments merely conveyed the fact that the prior jury found McDaniel to be the actual shooter.

(Streeter, supra, 54 Cal.4th at p. 265; Hamilton, supra, 45 Cal.4th at p. 948.)

 

 

 

F 763.3 (Factor a) Inst 9 (a-e) Lingering Doubt

*Add to CC 763:

Alternative a:

The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.

Alternative b:

It may be considered as a factor in mitigation if you have a lingering doubt as to the guilt of the defendant.

Alternative c:

Although proof of guilty beyond a reasonable doubt has been found, you may demand a greater degree of certainty for the imposition of the death penalty. The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.

Alternative d:

Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant intentionally killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.

Thus, if any individual juror has a lingering or residual doubt whether the defendant intentionally killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate.

Alternative e:

Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.

Thus, if any individual juror has a lingering or residual doubt about whether the defendant killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Lingering Doubt Instruction—It is clearly proper to rely on lingering doubt as a factor in mitigation. (People v. Thompson (1988) 45 C3d 86; but see Franklin v. Lynaugh (1988) 487 US 164 [101 LEd2d 155; 108 SCt 2320], in which the United States Supreme Court stated that the 8th Amendment does not mandate consideration of lingering doubt.)

However, while there is no requirement of an instruction on lingering doubt, it is a proper consideration for a jury. (People v. Brown (2003) 31 C4th 518; see also People v. Johnson (1992) 3 C4th 1183, 1251-52, concurring opinion of Mosk (with Kennard) [recognizing that the trial court is required to expressly instruct on “lingering doubt” when “there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard”]. (Johnson, 3 C4th at 1261, Mosk Conc. Op.) However, Justice Mosk also expressed the view that CJ 8.85 is “inclusive” of “lingering doubt.” (Id. at 1262, fn 4.)

See also FORECITE F 763.3 Inst 11.

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Judicial Misconduct May Require Reversal Error

CC 101 admonishes the jurors as follows:

 

Do not take anything I say or do during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.

However, such admonitions are not always sufficient to cure judicial misconduct. For example, in     People v. Nieves (May 3, 2021, S092410) [pp. 138] the CSC concluded that judicial misconduct required reversal of the death penalty sentence because:

…[T]he trial judge’s conspicuous disdain for defense counsel and witnesses, and his repeated references to their improper or untrustworthy conduct, lent credence to the prosecution’s argument that defendant was manipulative and deceitful. These were the very characteristics the prosecution highlighted to justify the death penalty. The trial judge effectively threw “the weight of his judicial position” (Mahoney, supra, 201 Cal. at p. 627) behind the prosecution’s case and erroneously excluded relevant and potentially beneficial mitigating evidence, thus “undermin[ing] the defense theory of the case.” (Sturm, at p. 1243).

See also: F 17.30 – Jury Not To Take Cue From Judge

Uncategorized

CSC Identifies Problems in CJ 2.28 Which Also Apply to CC 306

In People v. Nieves (2021) ______Cal 5th ______(May 3, 2021, S092410) [pp. 68-69] the CSC concluded that:

…[I] was error to instruct the jury with CALJIC former No. 2.28, given the deficiencies we have identified in that instruction [Citation to People v. Thomas (2011) 51 Cal.4th 449, 483] and the scope of discovery violations in defendant’s case.

First, the instruction informed the jury that the “defendant” concealed and failed to timely disclose evidence when there was no indication defendant played any such role. It was therefore misleading to suggest that “the defendant” bore any responsibility for [her] attorney’s failure to provide discovery.

Second, although the instruction indicated that concealment and late disclosure could affect the prosecution, there was no evidence that this had actually deprived the prosecutor of the chance to subpoena witnesses or marshal evidence in rebuttal.

…

Finally, the instruction was deficient in informing the jury that the weight and significance of any delayed disclosure are matters for your consideration, because it offered no guidance on how this failure might legitimately affect their deliberations.

[Internal citation and punctuation omitted.]

 

These concerns also apply to CC 306 even though it eliminated any express suggestion that the defendant personally concealed or failed to disclose evidence. As the CALCRIM bench notes recognize, there is still a danger that CC 306 will all the jurors to speculate that the defendant is to blame for the failure to timely disclose:

 

The court should consider whether giving this instruction could jeopardize the defendant’s right to a fair trial if the jury were to attribute a defense attorney’s malfeasance to the defendant.

Moreover, as with CJ 2.28, CC 306 fails to provide the jurors with any guidance as to how the failure to disclose “might legitimately affect their deliberations.”

 

In sum, Nieves confirms that the giving of CC 306 is problematic when applied to the defense and that neither the instruction nor the evidence of counsel’s failure to timely produce discovery should be given to the jurors.

 

See also

F 306 Inst 1 Defense Has No Obligation To Present Evidence

F 306 Inst 3 Failure To Provide Discovery Is Not Alone Sufficient To Convict

F 306 Note 1 Improper To Penalize Defendant For Counsel’s Discovery Violation

F 306 Note 2 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation

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Justice Liu Identifies Defect in California Death Penalty Process

Writing for a unanimous court, Justice Liu’s opinion in People v. McDaniel ____ Cal 5th _____(Aug. 26, 2021, S171393) rejected McDaniel’s arguments concerning the state constitutional and statutory right to jury trial.

 

However, Justice Liu added a 30-page concurring opinion concerning a related federal constitutional issue based on Apprendi v. New Jersey (2000) 530 U.S. 466:

 

Our case law has held that the Apprendi rule does not disturb California’s death penalty scheme. Yet our decisions in this area consist of brief analyses that have largely addressed high court opinions one by one as they have appeared on the books. In my view, we have not fully grappled with the analytical underpinnings of the Apprendi rule and the totality of the high court’s 20-year line of decisions. (People v. McDaniel,  supra,____ Cal 5th at ____, concurring opn.)

 

The CSC has consistantly held that the true finding on a special circumstance at the guilt phase makes death the maximum penalty, so nothing that happens at the penalty phase can implicate Apprendi. (See, e.g., People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn. 14 [“[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense….”]; People v. Ochoa (2001) 26 Cal.4th 398, 454 [“[O]nce a jury has determined the existence of a special circumstance, the defendant stands convicted of an offense whose maximum penalty is death…. Accordingly, Apprendi does not restrict the sentencing of California defendants who have already been convicted of special circumstance murder.”].)

 

But this assertion, in the context of Apprendi, appears incorrect. Under our death penalty scheme, ‘the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant‘ [Citation; original emphasis] upon a conviction for first degree murder and special circumstance true finding – with nothing more – is life imprisonment without parole. A death verdict is authorized only when the penalty jury has unanimously determined that “the aggravating circumstances outweigh the mitigating circumstances’ [Citations] – which necessarily presupposes that the penalty jury has found at least one [PC 190.3] circumstance to be aggravating. … Our cases have not satisfactorily explained why this additional finding of at least one aggravating factor, which is a necessary precursor to the weighing determination and is thus required for the imposition of a death sentence, is not governed by the Apprendi rule. [Emphasis added.] (People v. McDaniel,  supra,____ Cal 5th at ____.)

 

 

Furthermore, the finding of the required special circumstance(s) for death eligibility does not necessarily constitute the finding of an aggravating circumstance:

 

Whereas states like Arizona and Florida statutorily enumerate a specific list of factors that, if found to exist by the jury, have been deemed per se aggravating, section 190.3 takes a different approach: It enumerates a combined list of potentially relevant factors and leaves it to the penalty phase jury to determine whether, in a given case, each individual factor is aggravating, mitigating, or irrelevant for sentencing selection. (See § 190.3 [the penalty jury “shall take into account any of the following factors if relevant” (italics added)].) Nothing in our death penalty scheme deems a special circumstance to be per se aggravating. Instead, section 190.3 leaves it to the penalty jury to determine whether ‘the existence of any special circumstances found to be true’ is an aggravating factor ‘relevant’ to the penalty determination. (§ 190.3, factor (a).) [Emphasis original.] (People v. McDaniel,  supra,____ Cal 5th at ____.)

 

Nor is this concern merely speculative.

 

The list of special circumstances in section 190.2 is broad and includes a number of circumstances, such as commission of murder during a burglary or robbery, that do not seem necessarily aggravating in every case. (People v. McDaniel,  supra,____ Cal 5th at ____.)

 

In sum, this issue “deserves careful and thorough reconsideration … in a case where it is more fully developed.” (Ibid.)

 

Sample Instruction: [Add at beginning of CC 763]:

 

Before even considering whether or not to impose the death penalty you must first unanimously find at least one aggravating factor listed below beyond a reasonable doubt. If any juror has a reasonable doubt that the prosecution proved at least one aggravating factor beyond a reasonable doubt you must return a verdict of life without parole.