People v. Ortiz (2012) 208 Cal. App. 4th 1354,, upheld CC 1204 which deals with kidnapping during a carjacking. The Court of Appeal rejected the defendants’ arguments that the court should have instructed that the offense of kidnapping during a carjacking requires that the purpose of the kidnapping was to facilitate a carjacking and, in addition, that the offense is not committed if the carjacking is merely incidental to the kidnapping. (Id. at 1367-70.)
In revising CC 350 in August of 2012, the CC Committee stated that “A judge noticed that the instructions for filling in the blanks for “insert character trait” in [CC 350], Character of Defendant, could pose a problem if the trait in question were honesty. Character evidence must be relevant to the charged offenses, and honesty may or may not be relevant.” The Committee addressed the problem by revising the instructions for filling in the blanks and adding an explanatory bench note and case cite. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of August 31, 2012, p. 3.)
People v. Bell (2009)179 Cal. App. 4th 428, held that the wording of a portion of CC 1215 was erroneous.
“Without further explanation of what distance is ‘merely incidental’ to the associated crime, a jury could easily interpret the instruction to require a jury to acquit a defendant of kidnapping because the movement was compelled ‘in the course of committing the associated crime, regardless of the increased risk of danger to the victim, or, for that matter, that the distance was ‘substantial’ by any reasonable measure.” (People v Bell (2009) 179 Cal. App. 4th 428, 440.)
However, “if the incidental movement paragraph were to be interpreted in that fashion, it would be an incorrect statement of the law” because “whether the movement was over a distance merely incidental to an associated crime is simply one of several factors to be considered by the jury (when permitted by the evidence) under the ‘totality of circumstances,’. . .[and] is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement as the current wording of the incidental movement paragraph of [CC 1215] now suggests.”
Bell offered the following suggested re-wording of CC 1215:
Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the [distance the other person was moved was beyond that merely incidental to the commission of the crime of evading a police officer,] whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, [or] gave the [defendant] a greater opportunity to commit additional crimes.” (Id. at 440-41.)
People v. Johnson (2008) 164 Cal. App. 4th 731, 739, observed that CC 852 tracks the language of EC § 1109 in the same way that CC 1191 tracks the language of EC § 1108 regarding evidence of uncharged sex offenses. Therefore, because CC 1191 does not undermine the People’s burden of proving the charges against the defendant by proof beyond a reasonable doubt, the same rationale should apply in the context of CC 852. (Ibid.)
This instruction is similar to CJ 2.62 and has been upheld by the courts. (People v. Rodriguez (2009)179 Cal. App. 4th 1062.)
People v. Reyes (2008) 160 Cal. App. 4th 246, 251, noted that CJ 2.50.02 had been upheld numerous times as adequately explaining how the jury should consider other crimes. Reyes concluded that the reasoning of cases upholding the CJ instruction applied equally to CC 852. “In fact [CC 852] is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury.”
The Court of Appeal has held that CC 925 correctly does not require a finding of medical treatment to prove battery with serious bodily injury. (People v. Wade (2012) 204 Cal. App. 4th 1142, 1148-1149.)
People v. Fuentes (2009) 171 Cal. App. 4th 1139, held that CC 362 does not conflict with instructions on criminal street-gang participation.
The Related Issues section cites Centeno v. Superior Court for the proposition that a defendant must submit to an examination by a prosecution expert if the defendant places at issue the question of whether he is mentally retarded. (Centeno v. Superior Court (2004) 117 Cal. App. 4th 30.) Later California Supreme Court cases have severely limited and restricted the ability of the prosecution to obtain an order for an examination of the defendant. (Verdin v. Superior Court (2008) 43 Cal. 4th 1096; People v. Wallace (2008) 44 Cal. 4th 1032.) It is not clear that the prosecution may obtain such an order even in the context of a claim of mental retardation.
Relying on cases which had upheld the substantially identical CJ 2.15, People v. Lopez (2011) 198 Cal. App. 4th 698, held that CC 376 did not violate due process and did not decrease the prosecution’s burden of proof.