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Jury Unanimity: Child Molestation

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In a child molestation case, CC 3501 may be given instead of CC 3500.

 

“[CC 3501] is an alternative instruction to [CC No. 3500]. [CC 3501] affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in [CC 3500]: agreement as to the acts constituting each offense. But unanimity may also be found under [CC 3501] if the jury agrees ‘that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].’” (People v. Fernandez (2013) 216 Cal. App. 4th 540.)

 

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Consciousness of Guilt: False Statements–Defense Theory Of Intoxication

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In general, voluntary intoxication may not be considered for general intent crimes. (People v. Mendoza (1998) 18 Cal. 4th 1114, 1127-1128.)

 

However, voluntary intoxication may be relevant on the question of whether a defendant’s statements while intoxicated are probative of the defendant’s veracity within the meaning of CC 362. (People v. Wiidanen (2011) 201 Cal. App. 4th 526, 533.)

 

Wiidanen observed that “a defendant’s false or misleading statements made when he was intoxicated may not be probative of the defendant’s veracity, if the jury believed the defendant was too intoxicated to know his statements were false or misleading.” (Id. at 533.) The defense claimed that the defendant’s voluntary intoxication caused him not to have knowledge that the statements were false or misleading.

 

Hence, CC 362 should not be given with an unmodified version of CC 3426 because CC 3426 requires the jurors to consider voluntary intoxication regarding specific intent crimes, but voluntary intoxication is also relevant regarding whether a defendant’s statements while intoxicated are probative of his veracity. If both CC 362 and 3426 are needed in a case, judges should modify CC 3426 so that the jury can also consider voluntary intoxication regarding a defendant’s knowledge whether his or her statements were false or misleading. (People v. Wiidanen, supra, see also CC 3426 Bench Notes.)

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Consciousness of Guilt: False Statements–Duty To Instruct Sua Sponte Is Unclear

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The bench notes to CC 362 were revised to delete the statement that “The court has a sua sponte duty to instruct on consciousness of guilt. . ..” The Committee concluded that it was ambiguous whether or not a sua sponte duty existed here. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)

 

The Bench Notes were also revised on this date to note that CC 362 had been upheld by the Court of Appeal in April 2010. (CC 362, Bench Notes, citing People v. McGowan (2008) 160 Cal. App. 4th 1099.)

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Consciousness Of Guilt: False Statements–Not Applicable To Trial Testimony

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Courts have said that CC 362 should not be used to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant’s trial testimony. (People v. Beyah (2009) 170 Cal. App. 4th 1241.) CC 362 was revised on August 14, 2009, in response to this concern. As explained by the CC Committee on Criminal Jury Instructions in its report to the Judicial Council, “In People v. Beyah, 170 Cal. App. 4th 1241, 1247-1249, 88 Cal. Rptr. 3d 829 (2 Dist. 2009), the Court of Appeal invited the committee to clarify that [CC 362],Consciousness of Guilt: False Statements refers to a defendant’s statements made before trial. Otherwise the jury might conclude the admonition was directed at a defendant’s trial testimony.” The Committee clarified that point. (Advisory Committee on Criminal Jury Instructions Report (July 11, 2009), at pp. 3-4.)

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In Custody Informant Should Be Treated Like an Accomplice

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When the CC Committee revised CC 336 in August of 2012, it stated that “The legislature enacted Penal Code section 1111.5 requiring that the testimony of an in-custody informant be treated in a manner similar to that of an accomplice.” The committee revised CC 336, In-Custody Informant, accordingly, borrowing heavily from CC 334 and CC 335 on accomplice testimony. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of August 31, 2012, p. 3.) In People v. Davis (2013) 217 Cal. App. 4th 1484, the Court of Appeal held that a court must give this instruction sua sponte if the facts support it. CC 336 is extremely helpful to the defense, and should be requested whenever the prosecution is relying on the testimony of an in-custody informant. Defense counsel should vigorously argue this instruction to the jury in final argument as well.

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Credibility: Child Molestation

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People v. Fernandez ( 2013) 216 Cal. App. 4th 540, upheld CC 330 over a challenge that the instruction unfairly bolstered a child molestation victim’s credibility and impaired the defense’s ability to impeach her credibility based on her inability to perceive, understand, remember, and communicate. Relying on cases that had upheld CJ 2.20.1, the Court of Appeal held that CC 330 “simply instructs the jury to take into account a child’s ability to perceive, understand, remember, and communicate when making a credibility determination. It does not instruct the jury to subject a child’s testimony to a less rigorous credibility.” (Ibid.)

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Witness Credibility Factors: Sua Sponte Duty to Delete Inapplicable Factors

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The court has a sua sponte duty to give an instruction on factors relevant to a witness’s credibility. However, not all of the factors will apply in each case. Therefore, the court should strike those factors inapplicable in a case. Failure to do so may cause jurors to speculate about what evidence was not presented regarding the credibility of a witness. CC 225 repeats this “Witness” instruction for the Post-Trial instructions. CC 226 has been upheld, (People v. Lawrence (2009) 177 Cal. App. 4th 547; People v. Warner (2008) 166 Cal. App. 4th 653; People v. Anderson (2007) 152 Cal. App. 4th 919, 934) and requests to modify it have been denied. (People v. Chue Vang (2009) 171 Cal. App. 4th 1120.)

 

So long as the provisions of this instruction are given, the court is not required to give a specific cautionary instruction directing the jury to view the testimony of an immunized witness with distrust. (People v. Vines (2011) 51 Cal. 4th 830, 888-884.)

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Evidence Limited to Courtroom: Sua Sponte Duty to Admonish

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The court has a sua sponte duty to give CC 101, limiting jurors to considering evidence that is presented in the courtroom. (See People v. Carter (2010)182 Cal. App. 4th 522.)

 

It is critical that jurors be instructed that they cannot conduct any independent research on a case and should not discuss the case, even with other jurors, until it is completed. (People v. Danks (2004) 32 Cal. 4th 269, 298-300.) With the advent of new technology, such as text-messaging, twittering, etc., the court should emphasize that no means should be used to communicate with others regarding the case and that a violation of this rule is considered to be juror misconduct.

 

In 2010, CC 101 was revised to specify that, in addition to prohibiting jurors from sharing information by writing, by e-mail, and on the Internet, jurors should not use telephones, or “any other means of communications.” The CC Committee explained that it deliberately did not “choose to list specific means of inappropriately sharing information with electronic devices by name. The committee concluded that a list of specific Web sites such as Google, Facebook, and My Space is likely to require constant updates because popular Web sites come and go very quickly in the digital age. Moreover, when jurors hear a blanket admonition not to communicate with others about the trial, that admonition may be undercut by a list of specific forbidden means of communication. After listening to a long list, jurors may even conclude that modes of communication not mentioned are permitted.”(See Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, pp. 3-4.)

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California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine.

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In People v. Canizales, S221958 (E054056; 229 CA 4th 820) the defendant filed a petition for review which framed the question presented as follows:

 

In a criminal case charging attempted murder of a victim who was not killed or even injured, is it error to instruct the jury with a kill-zone instruction if there is evidence that, in order to kill a primary target, the defendant used lethal force that created a risk of death to persons around the primary target, but no evidence that the defendant used lethal force designed and intended to kill everyone in an area around the primary target?

 

The Court of Appeal in Canizales disagreed with another published opinion, People v. McCloud (2012) 211 Cal.App.4th 788 which held that it is error to give a kill zone instruction when there is no evidence that the defendant used lethal force designed and intended to kill everyone in an area around the primary target. It stated, “The kill zone theory … does not apply if the evidence shows only that the defendant intended to kill a particular targeted individual but attacked that individual in a manner that subjected other nearby individuals to a risk of fatal injury.” (Id. at 798, italics in original.) On the other hand, the Canizales Court of Appeal concluded that the kill-zone instruction was properly given because “five bullets were fired,” and “the jury could reasonably infer that [appellant] used a means to kill Pride that inevitably would result in the death of other victims within the zone of danger.”

 

When granting review the Court stated that the case presents the following issue: “Was the jury properly instructed on the ‘kill zone’ theory of attempted murder?

 

It remains to be seen how broadly the Court will rule on the “kill zone” concept in Canizalves. However, as previously discussed in Forecite there are many other potential problems with the current CALCRIM instruction (CC 600) on this doctrine:

 

See e.g.,

 

F 600.2 Inst 2 The Actus Reus And Intent Elements Of CC 600 Do Not Accurately Reflect The Elements Of Attempted Murder Prosecuted Under A “Kill Zone” Theory

 

F 600.2 Inst 3 Multiple Counts Based On Firing A Single Shot – CALCRIM 600 Should Be Tailored To Reflect The Factual Elements Of The Kill Zone Theory*

 

F 600.2 Inst 4 Tailoring To Facts: CC 600 Should Name The Defendant And Alleged Victim

 

Accordingly, it may be appropriate to preserve any such kill zone issues pending the decision in Canizales.

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Attempted Criminal Threat Requires Dual Jury Findings

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People v. Chandler (2014) 60 Cal. 4th 508, 524-525 relied on First Amendment concerns in construing PC 422 to require both a subjective and objective element:

 

To avoid substantial First Amendment concerns associated with criminalizing speech, we construe the offense of attempted criminal threat to require proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.

 

(See also People v. Jackson (2009) 178 Cal. App. 4th 590, 598.)

 

And the high court emphasized that the jurors must be instructed on both of these elements:

 

Accordingly, when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear.

 
The Court also emphasized that this rule was limited to attempted criminal threats under PC 422.