All posts by Julie Anne Ines

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Felony Murder Special Circumstance: When Appropriate Tison/Banks Factors Should Include Defendant’s Absence During the Killing

The cases have repeated explained that the defendant’s presence during the killing is an important factor to consider as to both the major participant and reckless indifference elements of culpability as to a defendant who did not kill and was not an actual killer.

 

In Tison, the high court stressed the importance of presence to culpability. Each Tison brother was physically present during the entire sequence of events culminating in the murders. (Tison v. Arizona (1987) 481 U.S. 137, 158.)

 

In People v. Banks (2015) 61 Cal.4th 788, 803 the California Supreme Court articulated several factors to aid in determining whether a defendant who lacked the intent to kill may qualify as a major participant for purposes of a special circumstance finding. These factors consist of the following: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Ibid., fn. omitted; emphasis added.)

In assessing the defendant’s mens rea, the court in People v. Clark (2016) 63 Cal.4th 522 restated and applied a version of the factors enumerated in Banks, including (1) a defendant’s knowledge that weapons would be used; (2) his physical presence at the crime and his opportunity to restrain his accomplices or aid the victim; (3) the duration of the felony (a longer period of restraint often providing a greater window of opportunity for violence); and (4) the defendant’s knowledge of his cohorts’ likelihood of killing. (Clark, supra, 63 Cal.4th at pp. 618-621, emphasis added.) Additionally, as a matter of first impression, the court considered the defendant’s efforts to minimize the risk of violence in the commission of the felony, concluding such evidence “can be relevant to the reckless indifference to human life analysis” though it would not “in itself, necessarily foreclose” such a finding. (Id. at pp. 621-622.)

 

However, the CALCRIM instructions on the Banks/Clark factors (CC 540B, CC 540C) omit any express reference to whether or not the defendant was present during the killing.

 

The first reckless indifference factor in CC 703 does contain the following garbled language: “[Did the present during the <insert underlying felony]” and the reckless indifference factors include the following:

 

[• Was the defendant near the person(s) killed when the killing occurred?]

[• Did the defendant have an opportunity to stop the killing or to help the victim(s)?]

 

The major participant factors include the following:

 

[• Was the defendant in a position to facilitate or to prevent the death?]

[• Did the defendant’s action or inaction play a role in the death?]

 

Nevertheless, there is no instructional factor which specifically enumerates the defendant’s lack of presence as a relevant factor.

 

Therefore, when the defendant was not present during the killing (e.g., defendant was a lookout or getaway driver) the CALCRIM factors for both reckless indifference and major participant should be modified to include reference to the defendant’s absence during the killing.

 

Moreover, CC 540B and CC 540C inform the jurors as follows:

 

“[It is not required that the defendant be present when the act causing the death occurs.]”

 

When appropriate this language should be modified consistent with the Banks/Clark factors to include the defendant’s absence during the killing in language such as the following:

 

Sample Instruction

 

It is not required that the defendant be present when the act causing the death occurs. However, in deciding whether the defendant was a major participant in the killing and whether (he/she) acted with reckless indifference consider any evidence that the defendant was not present during the killing.

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March 2021 CALCRIM Revisions

Effective March 12, 2021, the Judicial Council approved the following changes to CALCRIM:

1.Revisions to CALCRIM 202, 222, 520, 591, 730, 763, 1140, 1151, 1193, 1202, 1820, 2044, 2520, 2521, 2522, 2624, 2651.
2.Adoption of new CALCRIM 768 and 1933.
3.Revocation of CALCRIM 3220.

https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-EFF5-4271-9F84-01B5C2D97B75

See CALCRIM Revisions for an overview and commentary on some of the changes.

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Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.

 

Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with reckless indifference to human life.

 

In reliance on Banks and Clark CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.

 

As to reckless indifference CC 703, in reliance on Banks, instructs as follows:

 

…Among the factors you may consider are:

 

  • Did [sic] [Was] the present during the <insert underlying felony?
  • Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?
  • Did the defendant know that [a] lethal weapon[s] (was/were)used?
  • Did the defendant know the number of weapons involved?
  • Was the defendant near the person(s) killed when the killing occurred?
  • Did the defendant have an opportunity to stop the killing or to help the victim(s)?
  • How long did the crime last?
  • Was the defendant aware of anything that would make a coparticipant likely to kill?
  • Did the defendant try to minimize the possibility of violence?
  • <insert any other relevant factors>

 

As to major participant CC 703, in reliance on Clark, instructions as follows:

 

Among the factors you may consider are:

 

  • What was the defendant’s role in planning the crime that led to the death[s]?
  • What was the defendant’s role in supplying or using lethal weapons?
  • What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?
  • Was the defendant in a position to facilitate or to prevent the death ?
  • Did the defendant’s action or inaction play a role in the death?
  • What did the defendant do after lethal force was used?
  • <insert any other relevant factors.>

 

CC has brackets around each of the Banks and Clark factors and instructs that “{t]he trial court should determine whether the [Banks] [Clark] factors need be given.”

 

However, whether to instruct on specific factors is not necessarily an all-or-nothing choice. In some cases, certain factors may not be supported by the evidence.

 

For example, if there was no evidence presented as to whether or not the defendant was present during the felony, instruction on the presence factor might lead the jurors to speculate about whether or not he/she was present. Similarly, in the absence of evidence as to whether or not the defendant knew about, supplied or used a lethal weapon, instructing on the three lethal weapon factors could invite the jury to speculate that the defendant did know, supply or use a lethal weapon. Or, if the record does not provide any factual basis upon which to find whether or not the defendant had a role in planning the crime, instruction on that factor could encourage the jurors to conclude — based on nothing more than conjecture –that the defendant did indeed plan the crime. And, the same problem is likely to occur as to most of the other reckless indifference and major participant factors as to which no specific evidence was presented.

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence . . . .” ‘ ” (People v. Avila (2009) 46 Cal.4th 680, 704.) On the other hand, the court “has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ ” (People v. Saddler (1979) 24 Cal.3d 671, 681; see People v. Armstead (2002) 102 Cal.App.4th 784, 792.)

Accordingly, depending on the factual situation, counsel may wish to request, that inapplicable factors be deleted to avoid the dangers of juror confusion and/or speculation about that factor. To instruct the jurors on such inapplicable factors could confuse or mislead the jurors and/or encourage them to improperly speculate in violation of the principles set forth in Saddler et. al. (See also e.g., CC 375 [directing judge regarding list of purposes for which other crimes evidence was admitted as follows: “<Select specific grounds of relevance and delete all other options.>”]; see also CC 375 Instructional Duty: “The court must instruct the jury on what issue the evidence has been admitted to prove and delete reference to all other potential theories of relevance. [Citations]  Select the appropriate grounds from options A through H and delete all grounds that do not apply.”]. [Emphasis added to preceding citations].)

Alternatively, a limiting instruction could be requested. (See generally People v. Jennings (2000) 81 Cal.App.4th 1301, 1317-18 [recognizing “well-established rule that a court is obliged to give a limiting instruction upon a proper request…”]. ; cf., EC 355, “[w]hen evidence is admissible … for one purpose and is inadmissible … for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Italics added.)].)

While there is no precise CC instruction designed for this purpose, there are analogous instructions from other contexts which may provide templates for such an instruction. (See e.g., CC 763 re: listed factors in death penalty sentencing trial]:

Sample Instruction [adaption of CC 763, para 4 [death penalty factors; see also Bench Notes: [“The jury must be instructed to consider only those factors that are ‘applicable.’ (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023)”.]

          Consider, weigh, and be guided by these specific factors, where applicable.

Sample Instruction [Adaption from CJ 8.85, see also People v. Bonin (1988) 46 Cal.3d 659, 699]

You shall consider, take into account and be guided by [specified] factors, if applicable.

Sample Instruction [Adaption from CJ 8.85]

Only those factors which are applicable on the evidence adduced at trial are to be taken into account in the penalty determination. All factors may not be relevant and a factor which is not relevant to the evidence in a particular case should be disregarded.

Sample Instruction [Adaption of CC 200, para 1, re: deleted items in written instructions]:

 

          Disregard any factor as to which no evidence was presented and do not try to guess what any evidence as to that factor might have been.

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Felony Murder Special Circumstance: Reckless Indifference — Discrete Knowledge Elements Should Be Separately Enumerated

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.)

“[T]he culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.’ [Citation] This mental state thus requires the defendant be “subjectively aware that his or her participation in the felony involved a grave risk of death. [Citation].” (People v. Mil (2012) 53 Cal.4th 400, 417; italics by Mil court; see also People v. Banks (2015) 61 Cal.4th 788, 807 [“Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a “grave risk of death” satisfies the constitutional minimum. [Citation]”].) Thus, reckless indifference requires that the defendant form two discrete knowledge elements when he engaged in the act(s) which aided and abetted the actual killer. (Whether or not a judge is required to instruct on these discrete elements, sua sponte

CALCRIM includes these discrete knowledge elements in a single-sentence definition of reckless indifference:

A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death. (CC 540B, CC 540C and CC 703) [The judge’s duty to instruct at all on this concept is discussed in this post.]  Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined

 

However, instead of merely including these elements in a single-sentence definition they should be separately enumerated. Also, the instruction should add language designed to address the issue of concurrence of act and intent/mental state. Otherwise, there is a danger that the jurors could improperly rely on a finding that the defendant did not form the required knowledge mental states until after the killing. Such a finding would not satisfy either PC 190.2(a) or Enmund/Tison which were obviously intended to require pre-killing awareness by the defendant. (See this post.) Felony Murder Special Circumstance: Knowledge of Reckless Indifference — Must Precede Act of Aiding and Abetting
December 21st, 2020

 

 

Failing to clearly and expressly enumerate each discrete element in the body of the instructions to assure that the jurors will understand precisely what the prosecution must prove. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741 [Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition]; see also generally Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942.) This in turn violates the constitutional requirement that the prosecution prove every essential fact and element of the crime beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Lousiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704].)

 

Whether definition of reckless indifference is required sua sponte.

 

In reliance on People v. Estrada (1995) 11 Cal.4th 568, 578 the Bench Notes to CC 703 assert that there is no sua sponte duty to define reckless indifference.

However, this “holding should not be understood to discourage trial courts from amplifying the statutory language for the jury.” (Id. at p. 579.)

 

Sample Instruction       

 

  1. The defendant engaged in criminal activity;

 

  1. When he/she engaged in the criminal activity the defendant;

 

  1. Knew it was criminal

 

and

 

  1. Knew it involved a grave risk of death.
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March 2021 CALCRIM Revisions

Effective March 12, 2021, the Judicial Council approved the following changes to CALCRIM:

 

1.Revisions to CALCRIM 202, 222, 520, 591, 730, 763, 1140, 1151, 1193, 1202, 1820, 2044, 2520, 2521, 2522, 2624, 2651.

2.Adoption of new CALCRIM 768 and 1933.

3.Revocation of CALCRIM 3220.

 

https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-EFF5-4271-9F84-01B5C2D97B75

 

Below is overview of some of the proposed changes.

 

Note-Taking and Reading Back of Testimony (CALCRIM 202); Evidence (CALCRIM 222)

 

In People v. Triplett (2020) 48 Cal.App.5th 655, the court found that the jury’s request for transcripts should have been broadly interpreted as a request for readback of testimony. The committee added a bench note that, if the jury requests transcripts, courts should remind the jury of its right to request readback, stating what testimony it wants read.

 

FORECITE Tags: Readback Issues

 

FORECITE Commentary:

 

CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony
December 16th, 2020

 

Vehicular Manslaughter While Intoxicated (CALCRIM 591)

 

In People v. Machuca (2020) 49 Cal.App.5th 393, 400–401, the court held that a violation of Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5 when the offenses involve separate victims. The committee added this case to the Lesser Included Offenses section and clarified that injury must be to the same victim for driving under the influence causing injury to be a lesser included offense. The committee added this case to the Lesser Included Offenses section and clarified that injury must be to the same victim for driving under the influence causing injury to be a lesser included offense.

 

Special Circumstance: Murder in Commission of Felony (CALCRIM 730)

 

In People v. Garcia (2020) 46 Cal.App.5th 123, 149–155, the prosecutor argued that the defendant was an actual killer because he handed duct tape to the co-perpetrator who then used the duct tape to cover the victim’s mouth, ultimately causing the victim to die of asphyxiation. The court held that under these facts, only the person or persons who placed the duct tape on the victim’s mouth were actual killers within the meaning of Penal Code section 3 190.2(b). In a footnote, the court stated that CALCRIM 730 may have contributed to the legal error here and suggested that the committee consider revisions to clarify the concept of actual killer. Based on this opinion, the committee considered changing the definition of actual killer, which the instruction describes as someone who “did an act that caused the death.” However, the committee concluded that a change to the language would raise more issues in cases where an act is a substantial factor in causing death, when that act is combined with an act by another that could have caused death. The committee concluded that the error in Garcia was the result of improper prosecutorial argument, not the instruction. Thus, a note should be sufficient to prevent an erroneous argument about actual killer liability. The committee added a bench note that explains the meaning of actual killer versus aider and abettor.

 

FORECITE Commentary: CC 703 and/or CC 730 should be modified to preclude the jury from predicating a felony murder special circumstance on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant personally killed the victim.  CALCRIM’s Failure to Define the Term “Actual Killer” Erroneously Allows the Jurors to Conclude That an Aider and Abettor Can Be an “Actual Killer”

 

FORECITE Tags: CC 703, CC 730, Tison/Banks

 

Death Penalty: Factors to Consider (CALCRIM 763)

 

The committee added a sentence to inform jurors to disregard any jury instructions given in a prior guilt or sanity phase if they conflict with the jury’s consideration and weighing of factors. Although a similar admonition appears in CALCRIM 761 (Death Penalty: Duty of Jury), the committee decided to remind jurors of this important admonition by adding it to this instruction.

 

FORECITE Commentary: If the trial court instructs the jury to disregard all instructions given at the guilt phase, it must give those instructions which are applicable to the evaluation of the evidence at the penalty phase.  Death Penalty: Repeating Guilt Phase Instructions

 

Penalty Trial: Pre-Deliberation Instructions (Proposed New CALCRIM 768)

 

A committee member pointed out that CALCRIM does not contain a pre-deliberation instruction for penalty trials and suggested that the committee adapt one from CALCRIM 3550 (Pre-Deliberation Instructions). Through careful line-by-line analysis, the committee drafted this new instruction for courts to use during the penalty phase.

 

FORECITE Commentary: As with CC 3550 there are issues which the new death penalty pre-deliberation instruction does not address. See e.g.,

 

  • F 3550 Pre-Deliberation Instruction
    • F 3550 Inst 1 Jurors Duty
    • F 3550 Inst 2 Individual Juror May Communicate With Judge
    • F 3550 Inst 3 Jurors Not To Take Judge’s Comments As Reflecting On Attorneys And Defendant
    • F 3550 Inst 4 Duty to Deliberate
    • F 3550 Inst 5 Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
    • F 3550 Inst 6 Duty To Deliberate: Juror May Think About The Case And Make Notes While Deliberations Are In Recess
    • F 3550 Inst 7 No Electronic Research By Jurors Individually Or As A Group
    • F 3550 Inst 8 Jurors Must Not Conduct Investigation, Tests, Or Experiments During Deliberations
    • F 3550 Inst 9 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
  • F 3550 NOTES
    • F 3550 Note 1 Procedures And Instructions Re: Juror Deadlock
    • F 3550 Note 2 Propriety Of Giving The “Virga Firecracker” Instruction To A Deadlocked Jury
    • F 3550 Note 3 Individual Opinion Required: Duty To Deliberate – Informing Jury As To Possibility Of A Hung Jury
    • F 3550 Note 4 Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case
    • F 3550 Note 5 Dismissal Of Juror For Failure To Deliberate
    • F 3550 Note 6 Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room
    • F 3550 Note 7 Improper To Refer To The Prosecution as “The People”
    • F 3550 Note 8 Discharge Of Juror: Applicability Of Double Jeopardy
    • F 3550 Note 9 Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct
    • F 3550 Note 10 Judicial Misconduct: Informing Jury That Their Verdict Was Inconsistent
    • F 3550 Note 11 Juror Experiments During Trial Or Deliberations
    • F 3550 Note 12 Personal Expertise Of Juror

See also
Pre-Deliberation Instructions (CC3550): Modification When Received Benefits from Prosecution in Exchange for Testimony

 

Felony Unlawful Taking or Driving of Vehicle (CALCRIM 1820)

 

In People v. Bullard (2020) 9 Cal.5th 94, 110, the California Supreme Court clarified the substantive effect of Proposition 47 on Vehicle Code section 10851: “Except where a conviction is based on post theft driving (i.e., driving separated from the vehicle’s taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less.” In accordance with this holding, the committee simplified the instruction by combining the two taking alternatives (taking with intent to temporarily deprive and taking with intent to permanently deprive). The text now contains only two alternatives: taking with intent to deprive and post theft driving. In accordance with Bullard, only the taking alternative includes the element that the vehicle was worth more than $950.

 

FORECITE Tags: CC 1820; Proposition 47

 

Possession of Counterfeiting Equipment (Proposed New CALCRIM 1933)

 

In People v. Seo (2020) 48 Cal.App.5th 1081 [262 Cal.Rptr.3d 497], the defendant was convicted of possessing materials used to counterfeit currency. The defendant argued that the trial court incorrectly instructed the jury about the elements of Penal Code section 480(a). The court upheld the instruction that was given but agreed that it lacked clarity and proposed a clearer version for courts to consider in future cases. CALCRIM does not currently have an instruction for this offense. However, the committee reviewed the court’s proposed instruction and drafted a new jury instruction based on Penal Code section 480.

 

False Personation (CALCRIM 2044)

 

An attorney noted that this instruction failed to specify sufficiently that a separate act, apart from the false personation, is required for a violation of Penal Code section 529. The committee reviewed prior case law and decided to change the existing language of “did anything” to “did any act.” In reviewing the instruction, the committee determined that the instruction was trying to do too much by covering both sections 529 and 530 of the Penal Code. To clarify the instruction, the committee decided to remove those parts that relate to Penal Code section 530. The committee intends to draft a new instruction for Penal Code section 530 in the next publication cycle.

 

FORECITE Tags: CC 2044

 

Carrying Concealed Firearm(CALCRIM 2520, 2521 & 2522)

 

People v. Duffy (2020) 51 Cal.App.5th 257, 266 held that different subsections of Penal Code section 25400 do not describe separate offenses. The committee added this case and its holding to the Related Issues section, under the heading “Multiple Convictions Prohibited.”

 

FORECITE Links:

 

F 3515.1 Multiple Counts: Basic Instructions

F 3515.2 Multiple Counts: Specific Crimes

F 3515.2 NOTES

 

Threatening a Witness After Testimony or Information Given (CALCRIM 2624); Trying to Prevent Executive Officer From Performing Duty (CALCRIM 2651)

 

In People v. Smolkin (2020) 49 Cal.App.5th 183, 188, the court held that “a conviction under [Penal Code] § 69 based on threatening speech is unconstitutional if the speech was not a ‘true threat.’” CALCRIM 2624 already contains instructional language based on the reasonable listener standard stated in People v. Lowery (2011) 52 Cal.4th 419, 427. The committee inserted the same language from CALCRIM 2624 but didn’t include the phrase “rather than just an expression of jest or frustration.” The committee felt that the omitted phrase—by providing examples of what would not constitute a true threat—could potentially mislead jurors into concluding that jest or frustration was the only way in which a threat could not satisfy the reasonable listener standard.

 

Amount of Loss (CALCRIM 3220)

 

This enhancement penalty instruction is based on Penal Code section 12022.6, which contained a sunset date of January 1, 2018. Because the Legislature neither extended this date nor otherwise revived the statute, the enhancement no longer applies to offenses committed on or after January 1, 2018. As a result, the committee decided to revoke this instruction.

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Are Jurors More Likely to Acquit Under CALCRIM than CALJIC?

The California Supreme Court permits criminal jurors to be instructed on the definition of proof beyond a reasonable doubt using either CALJIC 2.90 or CALCRIM 2.20.

 

California law imposes a duty on the trial court to instruct the jury in a criminal case on the presumption of innocence in favor of the defendant and the prosecution’s burden of           proving guilt beyond reasonable doubt. Specifically, Evidence Code section 502 requires a trial court to instruct the jury concerning which party bears the burden of proof on each issue, and the applicable standard of proof. The prosecution’s burden of proof in a criminal case is controlled by section 1096 of the Penal Code, the substance of which has, in turn, been incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90 and CALCRIM No. 220. Tracking the language of section 1096, the standard instructions describe the presumption of innocence and the requirement of proof beyond a reasonable doubt, and provide the legislatively approved definition of reasonable doubt. A court satisfies its statutory obligation to instruct on these principles by giving CALJIC No. 2.90 or CALCRIM No. 220. As section 1096a explains, “[i]n charging a jury, the court may read to the jury Section 1096, and no further instruction on the … presumption of innocence or defining reasonable doubt need be given.”

 

With respect to the principles that a defendant is accorded the presumption of innocence and the prosecution bears the burden of proving guilt beyond a reasonable doubt,           instruction with CALJIC No. 2.90 or CALCRIM No. 220 also satisfies the long-established rule requiring sua sponte instruction on “those principles closely and openly connected with the facts before the court, and … necessary for the jury’s understanding of the case.” [Citation.]

 

          People v. Aranda (2012) 55 Cal.4th 342, 352-54

 

However, notwithstanding this purported legal equivalence between  CJ 2.90 versus CJ 2.20, the linguistic structure of the two instructions differ substantially.

 

CJ 2.90 provides as follows:

 

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

 

CC 2.20 provides as follows:

 

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty. (See Cal. Rules of Court, rule 2.1050 [declaring the CALCRIM instructions the “official instructions” for Cal. criminal courts].)

 

However, even assuming the two instructions are legally equivalent one empirical study suggests that a criminal defendant is actually better off with CC 220 than with CJ 2.90. This study compared the CALJIC and CALCRIM instructions regarding reasonable doubt. It concluded that mock jurors who were instructed with the CALCRIM definition of reasonable doubt better understood that legal principle than those who received the CALJIC definition. And, as a result, the CALCRIM jurors  returned 73 not guilty verdicts while the CALJIC mock jurors only returned 57 not guilty verdicts. (See “An Empirical Comparison of the Old and Revised Jury Instructions of California: Do Jurors Comprehend Legal Ease Better or Does Bias Still Exist?” (Open Access Library Journal 2017, Volume 4, e3164, ISSN Online: 2333-9721, ISSN Print: 2333-9705.) In other words, the mock jurors instructed with the CALCRIM definition of reasonable doubt returned approximately 28% more not guilty verdicts than those instructed with the CALJIC definition.

 

 

This study is significant because some judges continue to give the CALJIC definition even though CALCRIM contains California’s official “official instructions.” (See e.g., . (See e.g., People v. Potts (2019) 6 Cal.5th 1012, 1033 [judge gave CJ 2.90]; see also People v. Martinez UNPUBLISHED (Feb. 16, 2021, B301401) [pp. 5]; People v. Rodriguez UNPUBLISHED (July 10, 2019, B280915) [pp. 50]; People v. Colin UNPUBLISHED (July 2, 2019, B286588) [pp. 18].) Hence, it  may be important to consider the findings of this empirical study when deciding whether or not to oppose a judge’s decision to use CALJIC instead of CALCRIM.. Alternatively, in light of Aranda counsel may wish to consider requesting the CALCRIM definition of reasonable doubt even if the remainder of the instructions are taken from CALJIC.

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Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined

In reliance upon People v. Estrada (1995) 11 Cal.4th 568, 578 the CC states that the court does not have a sua sponte duty to define “reckless indifference to human life.”

 

Estrada concluded that there is no sua sponte duty as follows:

We disagree and find that, when considered in its entirety — as the phrase is presented to the jury — “reckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term “indifference,” referring to “the state of being indifferent,” is that which is “regarded as being of no significant importance or value.” (Webster’s New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard something, even to regard it as worthless, is to be aware of it. (See id. at p. 1911, col. 1 [“regard” is synonymous with “consider, evaluate, judge”].)

Although the term “reckless” — standing alone — may arguably be understood in common parlance to mean simply neglectful, heedless, or rash (see Webster’s New Internat. Dict., supra, at p. 1896, col. 1), when the word is placed in context within the statutory phrase “indifference to human life,” what is conveyed to the jury is more than mere negligence.

***

…[W]e conclude the generally accepted meaning of the phrase, “reckless indifference to human life,” in common parlance amply conveys to the jury the requirement of a defendant’s subjective awareness of the grave risk to human life created by his or her participation in the underlying felony. This is the meaning intended by the phrase “reckless indifference to human life” as it is used in section 190.2(d), and as defined in Tison. The phrase therefore does not have a technical meaning peculiar to the law, and the trial court had no sua sponte duty to further define the statutory phrase for the jury.

(Estrada, 11 Cal.4th at 577-79; see also Banks , supra , 61 Cal.4th at pp. 798, 801, 804 [citing Estrada approvingly … without questioning its holding that the reckless indifference language of section 190.2, subdivision (d) is adequate to apprise the jury of what is required and is not unconstitutionally vague.]; People v. Price (2017) 8 Cal.App.5th 409, 450-51[same].)

However, there is a fundamental flaw in Estrada’s analysis. The court never explained why lay persons would necessarily conclude that the risk created must be “grave” as opposed to other degrees of risk such as “possible” or “feasible.” Certainly, “common parlance” would not preclude jurors from concluding that a reckless act which creates a “possible risk of death” would constitute reckless indifference to human life.

Accordingly, notwithstanding Estrada’s analysis to the contrary, the jury should always be instructed on the definition of reckless indifference with specific reference to the required subjective knowledge elements in every appropriate case. Otherwise, there can be no assurance — without relying on the dubious assumption that lay jurors are “walking dictionaries.” See F 101.5 Inst 1 (a-c) Jurors Are Not Walking Dictionaries; see also F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term.

 

See also, this post Overcoming the “Walking Dictionary Myth” When Instructing the Jury

 

Moreover, Estrada did hold that “in appropriate cases, a clarifying instruction must be given on request. [Citations].” (Estrada, 11 Cal.4th at 579; emphasis added.)

 

Sample Instruction

 

To find that the defendant acted with reckless indifference to human life you must find all of the following elements beyond a reasonable doubt:     

 

  1. The defendant engaged in criminal activity;

 

  1. When he/she engaged in the criminal activity the defendant;

 

  1. Knew it was criminal

 

and

 

  1. Knew it involved a grave risk of death.
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Overcoming the “Walking Dictionary Myth” When Instructing the Jury

Jury instruction jurisprudence attempts to draw a “bright line” distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning.

On one side of this “bright line” the trial judge must sua sponte define terms which have a “technical meaning peculiar to the law.” (See People v. Krebs (2019) 8 Cal.5th 265, 331-32 [citing and quoting People v. Howard (1988) 44 Cal.3d 375, 408.)

On the other side of the line courts hold that the judge has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request when a word or phrase used in the instructions given “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law.” (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; see also (People v. Estrada (1995) 11 Cal.4th 568, 574 [no duty to define term which is “common parlance”].)

Furthermore, it is actually misconduct for a juror to consult a dictionary to ascertain the common meaning terms he or she does not fully understand. (See Glage v. Hawes Firearms Co.(1990) 226 Cal.App.3d 314, 323 and cases cited therein.

Thus, the case law is founded on a fundamentally false assumption: that jurors are “walking dictionaries” who — off the tops of their heads — will be able to accurately and precisely understand every ordinary-usage or common-parlance instructional term. We know this assumption is false through our own common experience and as demonstrated by actual juries who have resorted to the dictionary for definition of instructional terms. (See e.g., People v. Karis (1988) 46 Cal.3d 612, 642; U.S. v. Gillespie (6th Cir. 1995) 61 F.3d 457, 459; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 A.2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 S.E.2d 395, 400; cf., People v. Landwer (IL 1996) 664 N.E.2d 677, 682 [error to refuse jury’s request for dictionary].)

This “walking dictionary myth” undermines the reliability of the jury system by failing to assure that the jurors fully understand the instructions.

As a result, some courts have declined to assume that jurors are walking dictionaries.

For example, in People v. Billings (1981) 124 Cal.App.3d 422, 433, the judge granted the jury’s request for a dictionary after each side consented. However, in Karis the Supreme Court explained that “[u]se of a dictionary to obtain further understanding of the court’s instructions poses a risk that the jury will misunderstand the meaning of terms which have a technical or unique usage in the law.” (46 Cal.3d at 642.) And, the Court further stated that “[t]o the extent that this conclusion is inconsistent with that reached here, Billings is disapproved.” (Id at 643, fn 22.)

More importantly, the cases do not preclude a judge from instructing, sua sponte or upon request, on the dictionary definition of non-technical terms used in the instructions. (See People v. Krebs supra 8 Cal.5th 265, 331-32 [no sua sponte duty to so instruction]; see also People v. Whitlock (2003) 113 Cal.App.4th 456, 462 [” ‘To ascertain the common meaning of a word, ‘a court typically looks to dictionaries.’ [Citation.]”].) Hence, it typically is not error for the judge to instruct the jury with the dictionary definition of a term used in the instructions. For example, in People v. Lucero (2000) 23 Cal.4th 692, the court responded to a jury request for definition of a term used in the instructions by giving a dictionary definition of the term. The CSC rejected the defendant’s argument that doing so was error. (Id. at pp. 723-725; see also People v. Davison (1995) 32 Cal.App.4th 206, 212 fn. 3 [judge gave dictionary definition in response to jury request for a dictionary]; Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [because the term guard is not a specific legal term of art, judge properly provided the jury with a dictionary definition of the term]; People v. Hernandez (1991) 231 Cal.App.3d 1376, 1383-84 [jury was correctly instructed with the common dictionary definition of “obscene”].)

Nor is it misconduct for counsel to provide the jurors with correct dictionary definitions of common terms during closing arguments. For example, in People v. Cunningham (2001) 25 Cal. 4th 926, 1000 there was no misconduct when the prosecutor, during closing argument, presented the jury with three definitions of the term “conscious” from a dictionary. (See also generally CC 200 and CC 761: “You must follow the law as I explained it to you even if you disagree with it. If you believe the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”].)

In sum, without instructional clarification jurors are put in an untenable situation by the jurisprudential myth that they are “walking dictionaries.” Not only are jurors unrealistically expected to know the correct dictionary definitions of every undefined instructional term, but they are expressly prohibited from consulting the most logical place to find the meaning of a common word or phrase–the dictionary.

 

Accordingly, counsel should have the right to either:

 

  1. Request that the judge include a dictionary definition of certain terms in his or her instructions to the jury, or
  2. Include a dictionary definition of the term at issue in closing argument and request an instruction such as the sample below. (See also F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term)

 

Sample Instruction

 

If counsel provides you with a definition of a term used in these instructions, you may rely on that definition unless it conflicts with the instructions or I sustain an objection to counsel’s definition.

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Felony Murder: Uncharged Predicate Felony Must Still be Proved Beyond a Reasonable Doubt

PRACTICE NOTE: When a defendant is charged with a felony murder but not the predicate underlying felony, “there is a requirement of proof beyond a reasonable doubt of the underlying felony” (People v. Hart (1999) 20 Cal.4th 546, 609) and “…the defendant is entitled, upon request, to a specific instruction on the necessity of proving the underlying felony beyond a reasonable doubt even though a general instruction on reasonable doubt has been given.[Citations].” (People v. Whitehorn (1963) 60 Cal.2d 256, 264; see also People v. Berryman (1993) 6 Cal.4th 1048, 1085; People v. Granados (1957) 49 Cal.2d 490, 495-96; People v. Huynh (2013) 212 Cal.App.4th 285, 306 [“The elements of the particular felony must be proved and the defendant is entitled, on request, to a specific instruction on the necessity of proving the underlying felony beyond a reasonable doubt. [Citation]”].)

 

Furthermore, a defense to the underlying felony is also a defense to the felony murder allegation. Therefore, instruction upon such defenses should be given. For example, it has been held that the court should instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.” People v Mickey (1991) 54 C3d 612, 675-77 [felony murder charged as death eligibility special circumstance].)

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Error to Imply That Juror Notes Are per se Less Accurate than Reporter’s

It is well established that the jurors have a right to request readback of testimony during their deliberations. (See e.g., People v. Triplett (2020) 48 Cal.App.5th 655, 662 [If the jury requests transcripts, the court should remind the jury of the right to request readback and to advise the court whether there is any testimony they want read].)

 

The final paragraphs of CC 104, 202, and CC 222 advise the jurors of their right to request a readback of testimony with the admonition that “you must accept the (court reporter’s record/court’s recording)as accurate.”

However, there is no legal basis for requiring a juror to accept the court reporter’s notes over the juror’s own recollection and/or notes. (See e.g., People v. Smith (2005) 135 CA4th 914, 925 [assuming juror notes were “accurate”].) To the contrary, the cases and Rules of Court recognize the fallibility of the court reporter’s record by providing comprehensive procedures to correct it. (See e.g., Calif. Rules of Court Rule 35.2 [Certifying The Trial Record For Accuracy]; People v. Huggins (2006) 38 C4th 175, 191 [“punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed …”]; People v. Coley (1997) 52 CA4th 964, 972; People v. Williams (1994) 30 CA4th 1758, 1764-65 [court reporter’s transcription of oral instructions is not an adequate substitute for copies of the written instructions]; Little v. U.S. (10th Cir. 1934) 73 F2d 861, 864 [recognizing the reality that the reporter may make “a mistake in the reading of … shorthand symbol[s] …”] see also Anne Graffam Walker, Language at Work in the Law: The Customs, Conventions, and Appellate Consequences of Court Reporting, in LANGUAGE IN THE JUDICIAL PROCESS (Judith N. Levi & Anne Graffam Walker eds., 1990) at page 203.)

Therefore, the jurors should be free to rely on their own recollection of the testimony even if it conflicts with the reporter’s notes.