All posts by Julie Anne Ines

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Competence of Defendant: Improper Reference to “Mental Retardation”

CC 3451 instructs that “mental retardation” is an example of a developmental disability. However, the legislature has removed from derogatory references to “mental retardation”  and other such terms from the applicable statute. (PC 1367(a).) Accordingly, the term “mental retardation” as used in the final paragraph of the instruction should be replaced with the term “intellectual disability.” With this change the last sentence would provide as follows:

 

Examples of developmental disabilities include intellectual disability, cerebral palsy, epilepsy, autism, and conditions closely related to intellectual disability or requiring treatment similar to that required for intellectually disabled individuals.

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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, 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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Telling Jurors That the Presumption of Innocence Starts to Lift with the Testimony of the First Witness Is A “Significant Mischaracterization of the Law”

“It is well established that the presumption of innocence continues into deliberations. [Citation to People v. Dowdell (2014) 227 Cal.App.4th 1388, 1408.] It could hardly be otherwise, since jurors are required to keep an open mind and not begin to decide any issue—not only the ultimate issue of guilt—until all the evidence has been presented and deliberations have commenced. (See CALCRIM No. 101.)” (People v. Roberts (2021) 65 Cal.App.5th 469, ___ [pp. 12].)

Accordingly, telling jurors that the presumption of innocence “is starting to lift” from “the moment the first witness testifies” is a “significant mischaracterization of the law.” (People v. Roberts, supra, 65 Cal.App.5th at ___ [pp. 12].)

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Juror Anonymity: Jury Must Be Assured That Reasons for Anonymity Are NOT Related to Security

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’ right to a presumption of innocence. (Ibid.)

 

Accordingly, even if empanelment of anonymous jury is properly allowed the trial court should take precautions — including ameliorative instructions — to minimize the risk the jury will perceive the defendant as dangerous. .” (People v. Lopez (2021) 65 Cal.App.5th 484, ____[p. 2].) “As to the presumption of innocence, federal cases have recognized that ‘the danger that the jury might infer that the need for anonymity was attributable to the defendant’s character is minimized when the trial court gives the jurors a plausible and nonprejudicial reason for hiding their identities.'” (Thomas, supra, 53 Cal.4th at p. 788 [prejudice to defendant was minimized by trial court’s explanation numbers were used to protect jurors’ privacy in light of media interest], quoting United States v. Ross (11th Cir. 1994) 33 F.3d 1507, 1520 [district court properly minimized prejudicial effect on defendant by explaining it used numbers to insulate jurors from improper communications from either side and was not a reflection on the defense]; see United States v. Shryock (9th Cir. 2003) 342 F.3d 948, 972 [court minimized prejudice to defendant by instructing the jury that the reason for their anonymity was to protect their privacy from “curiosity-seekers”].)

For example, in Lopez the judge advised the prospective jurors they would be identified by the last four digits of their badge numbers “to protect [their] privacy and [their] security.” “Thus, far 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.” ((People v. Lopez, supra, 65 Cal.App.5th at ____  [pp. 21-22].)

Sample Instructions:

The use of your juror identification numbers, rather than your names, is a [routine] [normal] procedure which is required in all cases [to protect you from unwarranted intrusions from the media] and has nothing to do with the defendant[s] or this case.

You may not consider the use of this procedure for any purpose or draw any inferences from it at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations. Such procedures should have no bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

F 101.1 Inst 1

[As a matter of procedure] [and] [To protect you from unwarranted intrusions from the media], you will be referred to by your juror identification number rather than your name during the trial.

You may not consider the use of this procedure for any purpose or draw any inferences from it at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations. Such procedures should have no bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

F 101.1 Inst 2

See also generally,

  F 204 Inst 3 (a-f) Cautionary Instruction: Courtroom Security

  F 204 Inst 4 Courtroom Security: Necessity Of Repeating Presumption Of Innocence

  F 204 Note 14 Courtroom Security And Physical Restraints Distinguished

  F 204 Note 15 Courtroom Security: Whether Audience Seating Arrangement Necessitates Cautionary Instruction

  F 204 Note 16 Courtroom Security: Self-Representation—Exclusion Of Pro Se Defendant From Sidebar Conferences

  F 204 Note 17 Anonymous Victim Or Witness

  F 204 Note 18 Shackling Of Defense Witness

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CC 200 Does Not Cure DA’s Misstatement of the Law When Instructions Are Silent on the Issue

CC 200, paragraph 4, admonishes the jurors as follows:

          If you believe that the attorney’s comments on the law conflict with my           instructions, you must follow my instructions.

Typically reviewing courts rely on this admonition to assume that the jurors relied on the instructions instead of the arguments of counsel.

When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation].” (People v. Osband (1996) 13 Cal.4th 622, 717.)

People v. Collins (2021) 65 Cal.App.5th 333 illustrates an important exception to the rule set forth in cases such as Osband.

On appeal, Collins argued that the prosecutor misstated the law regarding the “fear” element of robbery. CC 1600, the pattern jury instruction for robbery, required the jury to find that the defendant used force or fear to take property from a person’s immediate possession or to prevent the person from resisting. Although the instruction defined “fear,” it did not specify whether the jury must find that (1) the victim was actually, subjectively in fear, or (2) an objective, reasonable person in the same circumstances would have been in fear.

 

However, the prosecutor repeatedly told the jury an objective standard applies and that it did not “matter if anybody is afraid.” This was error, as the law required proof of the victim’s actual, subjective fear.

The admonition in CC 200 [para 4] did not cure this error because:

Although a trial court’s admonition directing the jury to follow an instruction that “runs counter” to an argument made by counsel can obviate the deleterious effect of that argument [citing Osband] this is of no aid here because the CALCRIM instruction defining fear was silent as to the type of fear (subjective versus objective) that must be proven, and thus was consistent with the prosecutor’s legally incorrect argument; the instruction certainly did not “run[] counter” to it. (Collins, supra [p. 10].)

In sum, if a misstatement in the argument of counsel is not inconsistent with the instructions then there is nothing to prevent the jurors from relying on the misstatement. (Cf., Strategy Note in F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction

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CSC to Consider What Standard of Prejudice Applies to Instructional Error on Defense Theory

In People v. Hendrix REV. GTD. 1/20/21 S265668 (B298952; 55 Cal.App.5th 1092) the defendant told police that he entered the victim’s backyard and tried to force entries believing this to be his cousin Trevor’s house. The reviewing court acknowledged that appellant if subjectively believed that he was at Trevor’s house, the jury could, in theory, have found that he did not have the mental state required for burglary. (Citing and quoting People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11 and People v Russell (2006) 144 Cal.App.4th 1415, 1426-1427.) Accordingly, the court of appeal concluded that the judge erred by instructing the jury that such the defendant’s mistaken belief had to be objectively reasonable.

However, applying the state error Watson standard of prejudice, the court held that the error was harmless.

The CSC granted Hendrix’s petition for review to consider the following issue:

Did the Court of Appeal err in holding an instructional error on the defense of mistake of fact harmless? In the circumstances of this case, which standard of prejudice applies to an error in instructing on the defense of mistake of fact: that of  People v. Watson (1956) 46 Cal.2d 818 or that of Chapman v. California (1967) 386 U.S. 18?

 

Cf., Chapman or Watson: What is the Standard of Prejudice For Misinstruction on Defense Theory?
March 23rd, 2015

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When is a Mistake of Fact as to Victim’s Age a Defense?

PC 261; PC 261.5(a) & (b); 289(h)&(i)

In People v. Hernandez (1964) 61 Cal.2d 529, 529-530 the CSC analyzed the legislative intent behind PC 261, which defined sex with a female under the age of 18 years as rape (commonly known as statutory rape). The issue in the case was whether “the trial court erred in refusing to permit [the] defendant to present evidence going to his guilt for the purpose of showing that he had in good faith a reasonable belief that the prosecutrix was 18 years or more of age.” (Id. at 530.) The court interpreted the statute as allowing for a mistake of fact as to age defense because “the governing statute, by implication or otherwise, expresse[d] no legislative intent or policy to be served by imposing strict liability.” (Id. at 533.) “The primordial concept of mens rea, . . . expresses the principle that it is not conduct alone but conduct accompanied by certain specific mental states which concerns, or should concern, the law.” (Id. at 532.)

California enshrined this concept in PC 20 and 26. Section 20 provides that in “every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” Section 26 provides that a person who acts “under an ignorance or mistake of fact, which disproves any criminal intent” cannot commit a crime. Because the statutory rape statute at issue in Hernandez did not express any legislative intent to override sections 20 and 26, the court concluded that PC 261 must be subject to a mistake of fact as to age defense. (Hernandez, at 535-536.)

PC 261.5(a)&(d)

A defendant is not entitled to a mistake of fact instruction if he claims that he believed that the complaining witness was over 16. His belief would still constitute the mens rea of intending to have sex with a minor.(People v. Scott(2000) 83Cal.App.4th 784, 800–801.) However, if he claims that he believed that the complaining witness was over 18 years old, he is entitled to the mistake of fact instruction. (See discussion of People v. Hernandez, above.

PC 287

We are unable to detect any valid distinction between unlawful sexual intercourse and oral copulation within the rationale of Hernandez based upon which orifice of the human body is used. The refusal to so instruct was prejudicial error. (People v. Peterson (1981) 126 Cal.App.3d 396, 397.)

 

PC 287(c); PC 288

The courts have regularly refused to extend Hernandez to PC 288 crimes. (See cases collected in In re Donald R. (1993) 14 Cal.App.4th 1627, 1629.) For example, People v. Olsen (1984) 36 Cal. 3d 638 held that a defendant’s reasonable mistake as to the age of a victim is not a defense to a prosecution under Pc 288(a) which criminalizes the same act as PC 288 but applies when the victim is under 14 years old. In so holding, the court distinguished  Hernandez as follows: “There exists a strong public policy to protect children of tender years. . . . [S]ection 288 was enacted for that very purpose. [Citations.] Furthermore, even the Hernandez court recognized this important policy when it made clear that it did not contemplate applying the mistake of age defense in cases where the victim is of ‘tender years.’ ” (Olsen at 646; see also People v. Paz (2000) 80 Cal.App.4th 293, 300-01.)

PC 208(b)

People v. Magpuso (1994) 23 Cal.App.4th 112, 113 declined to apply Hernandez to require an instruction on reasonable mistake of age in a prosecution under PC 208 (b).) There, the defendant’s purported ignorance of the victim’s age did not eliminate criminal intent; unlike persons charged with violating a statute that proscribes conduct with minors which would be innocent if committed with an adult, the defendant in Magpuso had committed a criminal act — kidnapping of a person — with criminal intent, regardless of her belief as to the child’s age. (Magpuso, at 118.)

PC 236.1(c)

The question of whether mistake of fact applies to the attempt prong of PC 236.1(c) is unresolved. (People v. Moses (2020) 10 Cal.5th 893, 909 fn. 10 [“We are not called upon here to determine the interplay between subdivision (f) and the specific intent required for the attempt prong of [PC] 236.1(c) when the defendant attempts, but fails, to induce an actual minor to engage in a commercial sex act. We offer no view on whether a mistake of fact as to the victim’s age would be a defense in that situation.”]

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A Defendant May Be Convicted of Human Trafficking of a Minor Under the Attempt Prong of the Statute (Pen. Code, § 236.1, Subd. (C)), Rather Than the General Law of Attempt (Pen. Code, §§ 21a, 664), Even if the Target of His Recruitment Efforts Is an Undercover Detective

People v. Moses (2020) 10 Cal.5th 893 held that to violate PC 236.1(c) based on an attempt, the defendant must intend to induce a minor to engage in a commercial sex act (at least when no actual minor victim is involved). But the target of that inducement need not be an actual minor. (The Court disapproved People v. Shields (2018) 23 Cal.App.5th 1242 to the extent it is inconsistent with the opinion in this case.)

However, the court did not decide whether a mistake of fact as to the victim’s age would be a defense when the defendant attempts, but fails, to induce an actual minor to engage in a commercial sex act:

We are not called upon here to determine the interplay between subdivision (f) and the specific intent required for the attempt prong of [PC] 236.1(c) when the defendant attempts, but fails, to induce an actual minor to engage in a commercial sex act. We offer no view on whether a mistake of fact as to the victim’s age would be a defense in that situation.

People v. Moses (2020) 10 Cal.5th 893, 909 fn. 10

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CSC: Certainty About Identification Instruction (CC 315) Does Not Violate Due Process but Should No Longer be Given Absent Request by the Defense

People v. Lemcke (2021) 11 Cal.5th 644 held that — while a modified version of the witness certainty factor in the instruction is advisable — that alone does not establish a due process violation in light of the record as a whole. Accordingly, even though it affirmed the judgement the Court recommended that the CALCRIM committee should evaluate whether or how CALCRIM No. 315 might be modified to avoid juror confusion:

Although the language in CALCRIM No. 315 does not state that a certain identification is more likely to be accurate, the instruction does nothing to disabuse jurors of the common misconception that such a correlation exists. Indeed, merely directing the jury to consider a witness’s level of certainty, without any further caveats, effectively operates to reinforce that misconception. (See Mitchell, supra, 275 P.3d at pp. 912-913 [language “encourages jurors to give more weight to identifications by a certain witness” and “prompts the jury to conclude that an eyewitness identification is more reliable when the witness expresses greater certainty”].) That raises particular concerns in a case like this one, where the conviction was based almost entirely on the testimony of a single witness who expressed certainty in her identification and had no prior relationship with the defendant. (See McDonald, supra, 37 Cal.3d at p. 363 [” ‘Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect’ “]; Sánchez, supra, 63 Cal.4th at p. 462 [“[a]ny reexamination of our previous holdings [regarding the witness certainty instruction] . . . should await a case involving only certain identifications”].)

          (People v. Lemcke , supra, 11 Cal.5th at ____ [pp. 34-35].)

Until the instruction is modified, trial courts should omit the certainty factor from CALCRIM No. 315, unless the defendant requests otherwise. “Trial courts, however, retain discretion to include the factor when the defendant requests that it do so.” (Id at ___ [pp. 40].)