All posts by Julie Anne Ines

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Death Penalty Mitigation: Prosecutor’s Failure to Prove Other Violent Crimes or Felony Convictions Is a Mitigating Circumstance

CC 763 instructs the jurors to consider, inter alia, the following factors in deciding whether to impose a death judgement:

(b) Whether or not the defendant has engaged in violent criminal
activity other than the crime[s] of which the defendant was
convicted in this case. Violent criminal activity is criminal activity
involving the unlawful use, attempt to use, or direct or implied
threat to use force or violence against a person. [The other violent
criminal activity alleged in this case will be described in these
instructions.]

(c) Whether or not the defendant has been convicted of any prior
felony other than the crime[s] of which (he/she) was convicted in
this case.

 

When the prosecution alleges that one or both of these factors is present it must prove the existence of the prior criminal activity and/or conviction(s) beyond a reasonable doubt. (See People v. Robertson (1982) 33 Cal.3d 21, 53–55; People v. Davenport (1985) 41 Cal.3d 247, 281.)

 

CC 764 and CC 765 purport to instruct on these requirements, inter alia, as follows:

CC 764 [para 4]:

Each of you must decide for yourself whether the People have proved that the defendant committed an alleged crime. You do not all need to agree whether an alleged crime has been proved. If any juror individually concludes that an alleged crime has been proved, that juror may give the evidence whatever weight he or she believes is appropriate. On the other hand, if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely. [Emphasis added.]

 

CC 765 [para 2]:

The People must prove (this/these) allegation[s] beyond a reasonable doubt. If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime. [Emphasis added.]

These instructions violate fundamental 8th Amendment principles because they imply that the prosecution’s failure to prove the allegation –which can itself be a mitigating factor — is not to be considered by the jury. (i.e., CC 764: “if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely” and CC 765: “If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime.”

In other words, the CC instructions erroneously fail to permit the jurors to consider the prosecution’s failure of proof as mitigating contrary to the established rule that the ‘absence of prior violent criminal activity and the absence of prior felony convictions are significant mitigating circumstances in a capital case, where the accused frequently has an extensive criminal past.’ [Citation]” (People v. Pearson (2013) 56 Cal.4th 393, 413; see also People v. Bacigalupo (1991) 1 C4th 103, 145-46 (Mosk, J. concurring [absence of other violent criminal activity and/or prior felony convictions “plainly is mitigating”]; People v. Bonillas (1989) 48 C3d 757, 793 [absence of premeditation and deliberation is mitigating].)

 

As shown above, the aggravating factors (B) and (C) are absent as a matter of law unless they have been proved beyond a reasonable doubt (See Robertson and Davenport, supra), It follows that regardless of whether or not the defendant has affirmatively proved the “absence” of the alleged criminal activity and/or felony conviction, the inability of the prosecution to meet its burden of proof is itself a mitigating factor. (See People v. Pearson, supra.)

In sum, the CC instructions violate the 8th amendment which requires that the jury be adequately instructed upon mitigating factors. (See Lockett v. Ohio (78) 438 US 586; see also Payne v. Tennessee (1991) 501 U.S. 808, 822 [“We have held that a State cannot preclude the sentencer from considering `any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death …].)

Thus. the CC language should be modified/supplemented to preclude consideration of unproved crimes and convictions as aggravation but at the same time to permit the prosecution’s failure of proof as mitigation. (See e.g, samples below.)

 

Sample Instruction 1:

 

Modify last sentence of CC 764, paragraph 4, to provide as follows [added language is italicized]:

 

On the other hand, if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely and not consider it as an aggravating factor. However, the absence of proof beyond a reasonable doubt that the defendant committed an alleged crime and/or any affirmative evidence that he did not commit the crime is a mitigating factor.

 

Sample Instruction 2:

 

Modify last sentence of CC 765, paragraph 2, to provide as follows [added language is italicized]:

 

If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime and not consider it as an aggravating factor. However, the absence of proof beyond a reasonable doubt that the defendant was convicted of (the/an) alleged crime is a mitigating factor.

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CC 1192: Rape Trauma Testimony — Expert erroneously allowed to testify that it is “rare” for children to make up stories about sexual abuse

In People v. Lapenias (2021) 67 Cal.App.5th 162 an expert testified regarding CSAAS, a theory that identifies typical behaviors of sexually abused children. The expert had no information or knowledge about the facts of the instant case. Defense counsel did not cross-examine the expert.  Instead, after an off-the-record sidebar, the trial court read aloud five written questions submitted by individual jurors. One juror asked: “Is it common for children to make up a story that abuse occurred, when, in fact it did not?” Over defendant’s objection, the expert responded: “No, that’s rare.”  Defense counsel repeated his objection, arguing that the question asked the expert to evaluate defendant’s guilt.

 

The reviewing court agreed with defense counsel. An expert may not give an opinion as to whether another witness is telling the truth, or whether the defendant is guilty, because the jury is generally well equipped to discern whether a witness is being truthful. As in People v. Julian (2019) 34 Cal.App.5th 878 and People v. Wilson (2019) 33 Cal.App.5th 559, the CSAAS expert’s statement here was inadmissible, as it amounted to vouching for the veracity of the alleged victim.

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CALCRIM Revisions Effective October 1, 2021

Effective 10/01/2021 CALCRIM revised instructions listed below. See https://jcc.legistar.com/View.ashx?M=F&ID=9785541&GUID=96E612F7-0BC9-43FE-814D-86F615957765

 

 

Number  

Title
 

336

  

In-Custody Informant
 

417

  

Liability for Coconspirators’ Acts
 

582

 Involuntary Manslaughter: Failure to Perform Legal Duty–Murder Not Charged
 

625

  

Voluntary Intoxication: Effects on Homicide Crimes
 

775

  

Death Penalty: Mental Retardation
 

840

 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition
 

852A

  

Evidence of Uncharged Domestic Violence
 

1001

  

Rape or Spousal Rape in Concert
 

1015 & 1016

 Oral Copulation by Force, Fear, or Threats Oral Copulation in Concert
 

1030 & 1031

 Sodomy by Force, Fear, or Threats Sodomy in Concert
 

1045 & 1046

 Sexual Penetration by Force, Fear, or Threats Sexual Penetration in Concert
 

1201 & 1215

  

Kidnapping
 

1243

  

Human Trafficking
 

1244

  

Causing Minor to Engage in Commercial Sex Act
 

1807

  

Elder Abuse
 

1930

  

Possession of Forged Documents
 

NEW 2045

  

False Personation
 

2100

 Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury
 

2200

  

Reckless Driving
 

2656

  

Resisting Peace Officer, Public Officer, or EMT
 

NEW 3185

 Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older
 

3411

  

Mistake of Law
 

3451

  

Present Mental Competence of Defendant

 

Below is CALCRIM’S overview of some of the proposed changes:

 

In-Custody Informant (CALCRIM No. 336)

A member alerted the committee about an unpublished opinion (People v. Aguilera (Mar. 20, 2020, F073866)) that discovered a potential ambiguity in this instruction. The court in Aguilera observed that the instruction failed to state corroboration is only required for incriminating testimony by an informant and not for exculpatory testimony. To clarify the instruction, the committee added “against the defendant” after the phrase “You may use the (statement/ [or] testimony of an in-custody informant” at the beginning of the list of requirements for such testimony. The committee also inserted the following sentence following those requirements: “This supporting evidence requirement does not apply where the testimony of an in-custody informant is offered for any purpose other than proving (guilt/ [or] a special circumstance/evidence in aggravation).”

 

Liability for Coconspirators’ Acts (CALCRIM No. 417)

This instruction explains to jurors that “[a] member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy.” A superior court judge pointed out that Senate Bill 1437 (Stats. 2018, ch. 1015), by eliminating natural and probable consequence liability for murder, could affect the application of this instruction in a murder case where the target offense was not murder. In response, the committee added a related issue to alert users of this potential complication. This same related issue was added to CALCRIM Nos. 402 and 403 in 2019.

 

 

Death Penalty: Mental Retardation (CALCRIM No. 775)

Assembly Bill 2512 (Stats. 2020, ch. 331) amended Penal Code section 1376, which addresses intellectual disability in death penalty proceedings. The legislation changed the third prong of the intellectual disability definition to include conditions that were observable “before the end of the developmental period” instead of the previous age 18 cutoff. The committee updated the instruction with this new statutory language and replaced the term “mental retardation” with “intellectual disability.” The committee also modified the authority section by removing an old link and by adding Hall v. Florida (2014) 572 U.S. 701, 722–723 [134 S.Ct. 1986, 188 L.Ed.2d

1007].

 

Evidence of Uncharged Domestic Violence (CALCRIM No. 852A)

Senate Bill 1141 (Stats. 2020, ch. 248) amended Family Code section 6320 to add coercive control as a basis for an ex parte order. While reviewing the instruction in relation to this statutory change, an attorney pointed out that the instruction failed to provide a complete definition of abuse as defined in Family Code section 6203. In response, the committee expanded the definition of abuse to include sexual assault and engaging in behavior that was or could be enjoined by Family Code section 6320. The committee also added domestic relationships specified in Family Code section 6211. During the comment period, a commenter noted that the Family Code contains separate definitions of cohabitants and that the relationships covered under Family Code section 6211 are broader than what the committee had initially included. As a result, the committee expanded the relationship descriptions and clarified the different statutory definitions.

 

Causing Minor to Engage in Commercial Sex Act (CALCRIM No. 1244)

In People v. Moses (2020) 10 Cal.5th 893, 912–913 [272 Cal.Rptr.3d 862, 477 P.3d 579], the California Supreme Court held that an actual minor victim is not required to violate Penal Code section 236.1(c). The Court also disapproved of People v. Shields (2018) 23 Cal.App.5th 1242 [233 Cal.Rptr.3d 701] “to the extent that it is inconsistent with this opinion.” 10 Cal.5th at 913, fn. 13. Accordingly, the committee expanded the third element of the instruction to include situations when the defendant believed that a person was under 18 years of age. The committee also removed the bench note related to the holding of People v. Shields and added a reference to Moses.

 

 

False Personation (proposed new CALCRIM No. 2045)

Previously, CALCRIM No. 2044 applied to offenses under both Penal Code section 529 and section 530. Last March, the Judicial Council approved revisions to CALCRIM No. 2044 that included simplifying the instruction so that it only covered Penal Code section 529 offenses. As a result, this new instruction is intended to separately cover Penal Code section 530 offenses. The new instruction largely tracks the deleted sections from the prior version of CALCRIM

No. 2044.

 

 

Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (CALCRIM No. 2100)

In People v. Stockman (2020) 56 Cal.App.5th 1093, 1095–1096 [270 Cal.Rptr.3d 812], the court noted that this instruction, unlike the lesser included instruction

CALCRIM No. 2110 (Driving Under the Influence Without Injury), fails to state that the “manner in which a person drives is not enough by itself to establish” that the person was “under the influence,” though it may be considered along with other factors. The court encouraged the Judicial Council to consider reconciling these two instructions so that jurors would have consistent direction. In response, the committee incorporated the manner of driving language from CALCRIM No. 2110 into this instruction.

 

Resisting Peace Officer, Public Officer, or EMT (CALCRIM No. 2656)

In People v. Mackreth (2020) 58 Cal.App.5th 317 [272 Cal.Rptr.3d 498], the court held that the mental state element of Penal Code section 148(a) does not require actual knowledge that the victim is a police officer. In reaching this conclusion, the court disagreed with In re A.L. (2019) 38 Cal.App.5th 15, 22 [250 Cal.Rptr.3d 572], which held that the defendant must have actual knowledge he or she is resisting an officer in the performance of duty. The committee added a bench note to highlight this split in authority and to alert trial courts to modify the instruction if the court agrees with the holding of A.L. instead of Mackreth.

 

Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older (proposed new CALCRIM No. 3185) with related revisions to CALCRIM Nos. 1001, 1015, 1016, 1030, 1031, 1045, and 1046

A committee member noted that CALCRIM No. 1045 did not include sentence enhancements that apply when force or fear is used against a minor victim who is either younger than 14 years of age or at least 14 years of age. Because multiple sex offenses contain similarly worded sentence enhancements, the committee decided to create a new instruction that could be used in conjunction with several instructions. This new instruction contains alternatives that correspond to the different statutory language describing the various Penal Code offenses. The committee also added a reference to this new instruction in the bench notes of the related instructions.

 

Finally, in CALCRIM No. 1045, the committee added People v. Duarte Lara (2020) 49 Cal.App.5th 332 [262 Cal.Rptr.3d 774] [holding that the statutory presumption that a minor over 14 is incapable of legal consent does not apply to a violation of Penal Code section 289(a)(1)(C)] to the bench notes.

 

Mistake of Law As a Defense (CALCRIM No. 3411)

People v. Koenig (2021) 58 Cal.App.5th 771, 809 [272 Cal.Rptr.3d 732] involved a prosecution for securities fraud. During the trial, the defendant presented evidence that he had relied on legal advice that he was not required to disclose his prior mail fraud convictions when he offered to sell a security. The court agreed that “a mistake of law instruction was warranted insofar as evidence gave rise to a good faith belief that the prior convictions need not be disclosed.” The committee added this case to the bench note that discusses the limited application of this defense.

 

Present Mental Competence of Defendant (CALCRIM No. 3451)

A criminal defense attorney requested that the committee change element 2 of the competence definition to include that the accused can “consult with counsel and assist in preparing his or her defense” as outlined in Dusky v. United States (1960) 362 U.S. 402, 402 [80 S.Ct. 788, 4 L.Ed.2d 824]. In addition to Dusky, the committee reviewed People v. Jablonski (2006) 37 Cal.4th 774, 808 [38 Cal.Rptr.3d 98, 126 P.3d 938], which held that the competency standard outlined in Penal Code section 1367 comported with federal due process standards. Because the competency standard in this instruction is based on Penal Code section 1367, the committee concluded that the language did not need to be changed but instead added citations to Dusky and Jablonski to the authority section. The committee also replaced the term “mental retardation” with “intellectual disability.”

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Mistake of Law as Defense Theory to Specific Intent Crime

The court has a sua sponte duty to give CC 3411 if a defendant charged with a specific intent crime is appropriately relying on this defense or there is substantial evidence that a defendant’s good faith mistake of law provides a valid defense to a specific intent crime and the defense is not inconsistent with the defendant’s theory of the case. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 774-780; see also, People v. Koenig (2020) 58 Cal.App.5th 771, 809 [272 Cal.Rptr.3d 732] [instruction appropriate where defendant relied on advice of counsel to establish mistake of law related to omission of material fact in sale of security]; see also F 3407 Inst 3 Mistake Of Law May Negate Specific Intent.)

 

If the defendant is charged with a general intent crime and raises a mistake of law defense, CC 3407 applies. If both general and specific intent crimes are charged, use the bracketed first paragraph of CC 3411 may be used.

 

For more issues related to mistake of law see:


F 3407 Inst 1 Delete Mistake Of Law Instruction As Duplicative And Argumentative
F 3407 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 3407 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3407 Inst 5 Pinpoint Instruction On Mistake Of Law
F 3407 Inst 6 (a-c) Vagueness Of Law As Relevant To Mistake Of Law

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Improper Prosecutorial Statements That It Is Illegal for Jurors to Refuse to Deliberate and that Jurors Must Report any Such Refusal

In People v. Morales (2021) 67 Cal.App.5th 326 the prosecutor stated in closing argument that it was “illegal” for jurors to refuse to deliberate and admonished that the jurors must report the failure to deliberate, and allegedly conveyed that jurors had no power to engage in nullification.

 

The Court of Appeal held that the prosecutor’s statements were erroneous based on People v. Engelman (2002) 28 Cal.4th 436, which disapproved CJ 17.41.1 [jury has obligation to report any juror’s refusal to deliberate or intent to disregard the law].)

 

However, it was unnecessary to decide whether the prosecutor’s comments rose to the level of misconduct, because trial counsel’s failure to object was not prejudicial. The trial court correctly instructed the jurors that they had a duty to talk, deliberate, and follow the law, and there was no evidence of juror conflict, a refusal to deliberate, or an intent to disregard the law.

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Porch Is Not Part of the Residence for the Presumption of Fear from Entry

California’s “stand your ground” law is PC 198.5 which provides that a person using force likely to cause death or great bodily injury (GBI) within his or her residence is presumed to have held a reasonable fear of imminent death or GBI to themselves or a member of their household when that force is used against another who unlawfully and forcibly enters the residence.

 

People v. Wilson (2021) ____Cal. App. 5th ____ [C083772; 8/11/21; C/A 3rd] considered whether PC 198.5 applies to a killing which occurred on a porch outside the actual residence.  The Court concluded that the “stand your ground” law does not aplply to porches outside the residence: “a resident’s use of force must be within the residence, and thus an unlawful and forcible entry into a residence is a predicate to application of the presumption. [Citaitions.]” (Id. at ___.) “ ‘A reasonable person would not expect protection from unauthorized intrusion onto this kind of porch. Quite the contrary. Social convention dictates that anyone wishing to summon the occupant’s presence or gain entry into the home must first enter the porch.’ [Citation].” (Ibid.)

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Improper to Withhold Juror Names from Counsel Absent Actual Risk to the Jurors

In People v. Lopez (2021) 65 Cal.App.5th 484 the judge withheld from the attorneys the names of prospective jurors, identifying them only by their badge number, out of a concern the attorneys or a member of the public or press would obtain additional information about the jurors or contact them. Lopez objected, and the court stated this was its general practice in order to protect the security of the jurors.

 

On appeal the reviewing court held that Code of Civil Procedure section 237 does not authorize sealing of juror identifying information at any stage of a civil or criminal action prior to the return of the jury verdict.

 

The empanelment of an anonymous jury is allowed only where (1) there are strong grounds for concluding that it is necessary to ensure juror protection and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused. (People v. Thomas (2012) 53 Cal.4th 771, 788.) Anonymous juries may infer that the dangerousness of those on trial required their anonymity, thereby implicating defendants’ abridging the defendant’s federal constitutional right to a presumption of innocence.

 

In Lopez there was no evidence of any danger of physical harm or likely interference with the prospective jurors if their names were disclosed. The trial court’s concerns were not based on the actual risk to prospective jurors in this specific case. Accordingly, there was no basis under section 237 to keep the prospective jurors’ names concealed from counsel. (People v. Lopez. supra.)

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Limitations on Selection of an Anonymous Jury and Access to Juror Names

  • People v. Lopez (June 14, 2021, B305783) 65 Cal.App.5th 484 affirmed the rule allowing the selection of an anonymous jury but recognized important limitations on such a practice.
  • First, while Code of Civil Procedure § 237 requires juror identifying information to be sealed after the jury returns its verdict, § 237 “does not authorize sealing of juror identifying information at any stage of a civil action or at any stage of a criminal action prior to return of [the] jury verdict.” [Quoting Erickson v. Superior Court (1997) 55 Cal.App.4th 745, 758].) Lopez at ___ [pp. 11-12].

Second, concealing the names of prospective jurors from counsel must be based on a case-specific showing of need. (Ibid.) “The federal courts have identified five factors for courts to consider in determining whether to empanel an anonymous jury: ‘(1) [T]he defendants’ involvement in organized crime, (2) the defendants’ participation in a group with the capacity to harm jurors, (3) the defendants’ past attempts to interfere with the judicial process, (4) the potential that the defendants will suffer a lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.’”  [Citations.]  “However, this list of factors is not exhaustive, nor does the presence of any one factor or set of factors automatically compel a court to empanel an anonymous jury.” (Id.at ____[pp. 15-16].)

 

Third, anonymity must be explained to jurors in way that doesn’t suggest danger.

 

“The court advised the jurors that they would be referred to by the last four digits of their badge numbers, explaining, ‘[W]e don’t mean any disrespect, this is to protect your privacy and your security. And that’s also why we have you wear the badges … throughout the building.’ The court explained the importance of jury duty and that it would be too expensive to employ professional jurors. The court added that with professional jurors there would be a ‘greater chance of graft or corruption because everybody will know who these jurors are.’”  This explanation was an abuse of discretion.  “[T]he trial court took no precautions to minimize the risk the jury would perceive Lopez was dangerous. … [F]ar from minimizing any risk Lopez posed to the jury, the court highlighted possible security concerns, although it did not specifically connect those concerns to Lopez.”

 

 

Fourth, upon the recording of a jury verdict in a criminal case, the court’s record of the jurors’ personal identifying information is to be sealed but any person may petition the court for disclosure of the identifying information which petition must be supported by a declaration establishing good cause for the disclosure. ((CCP 237(b People v. Cook (2015) 236 Cal.App.4th 341, 34); cf.,  Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1098, fn. 7.)

 

See this post for further discussion and sample instruction: Juror Anonymity: Jury Must Be Assured That Reasons For Anonymity Are NOT Related To Security

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Improper Prosecutor Argument That Reasonable Doubt Requires “Some Evidence on Which to Base A Doubt”

In People v. Johnsen (2021) 10 Cal.5th 1116, 1166-67 the prosecutor misstated the law by telling the jurors that “[t]here has to be some evidence on which to base a doubt” because this definition of reasonable doubt “preclude[d] jurors from having reasonable doubt solely based on the insufficiency of the prosecution’s evidence.”

The CSC held a similar mischaracterization to be misconduct in People v. Hill (1998) 17 Cal.4th 800, There, the prosecutor “addressed the concept of reasonable doubt, stating: ‘it must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt .’[Citation]” (Id. at p. 831 (first italics added by Hill.) Over a defense objection, the court allowed the prosecutor to continue, at which point she informed the jury: ” ‘There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.’[Citation].” (Ibid., italics added by Hill.) While observing that these statements were “somewhat ambiguous,” (ibid.) the Court concluded that the prosecutor had engaged in misconduct because it was “reasonably likely” the jury understood this comment “to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt” (id. at p. 832).

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PC 207(a) Kidnapping Requires Force, Not Just Deception

CJ 1201 states that the defendant must use either force or deception to move a victim. However, while “deception may certainly supplement force, it cannot supplant it.” (People v. Nieto (2021) 62 Cal.App.5th 188, ___[276 Cal. Rptr. 3d 379, 383].) Accordingly, “because deception is not an alternative to force under [PC] 207 subdivision (a), [CC].1201 is wrong and inapplicable in cases involving kidnapping ‘by deception alone …’ {Citation].” (Nieto, supa, 276 Cal. Rptr. 3d at 386.)