All posts by nrussell@jamespublishing.com

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Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.

 

After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from him concerning the charged incident. Their conversations, which were recorded, included  incriminating statements that also inculpated the two other codefendants.

 

Admission of these statements did not violate the Confrontation Clause because they were not testimonial.  However, their admission was still improper because they were hearsay and did not qualify as admissions against penal interest.  The hearsay exception does not apply to statements “‘that are self-serving or otherwise appear to shift responsibility to others…,’” even if they were “‘made within a broader narrative that is generally self-inculpatory.’”  Thus, the declarant’s statements were not admissible although they included some admission of the declarant’s complicity “by demonstrating [he] had knowledge of what had occurred…, [because] the statements nonetheless ‘placed the major responsibility’ on his co-defendants.’”

 

The appellate court further held that the statements were made under circumstances questioning their reliability because they “were intended, at least in part, to mitigate [the declarant’s] own blameworthiness[;]” the declarant “provided conflicting descriptions of his and his co-defendants’ respective role[s] in the offense…; [and] all of [his] statements identifying [one codefendant] as the shooter and [the other codefendant] as the driver were preceded by leading questions or narrative statements by the informants.”

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Dog Tracking: Cautionary Instruction Not Required Sua Sponte

The CALCRIM Bench Notes to CC 374 state that the court “has a sua sponte duty to instruct on tracking dogs whenever they are used to prove the identity of a defendant. [Citation.]”

 

But see, People v. Westerfield (2019) 6 Cal.5th 632, 707 fn. 8:

 

[W]e have previously recognized that “it is more appropriate to permit defendants to determine whether to request the instruction than to require the trial judge to give it in every case” because dog tracking evidence can be either inculpatory or exculpatory. [Citing and quoting (People v. Diaz (2015) 60 Cal.4th 1176, 1192.]

 
See also,
 

CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte
July 30th, 2019

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Defense Theory: Defendant On Medication And No Longer Violent

Defense counsel is entitled to expressly argue that defendant will not present any future danger in prison because he has been on medication provided by custodial authorities for several years and that medication has eliminated his violent tendencies.  (People v. Parker (2017) 2 Cal.5th 1184, 1231.)

 

Thus, upon request the defense should have the right to a specific instruction on this defense theory. “A trial court should not require a party to rely on abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it. [Citations.]” (Self v. General Motors Corp. (1974) 42 CA3d 1, 10; see also Soule v. General Motors Corp. (1994) 8 C4th 548, 572; see also Sesler v. Ghumman (1990) 219 CA3d 218, 225.) “Therefore, giving an instruction embodying a general rule does not justify refusing a more specific instruction applying the rule to the particular circumstances of the case.” (Ibid.)

 

See also PG III(A)

 

Sample Instruction: The prosecution contends that the defendant will be a future danger in prison. The defense contends that he will not present any future danger in prison because he has been on medication and is no longer violent. In resolving this question consider the evidence that the defendant has been on medication provided by the custodial authorities and that he has not been violent while on this medication.

 

 

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Limiting Instruction Does Not Cure Confrontation Error

In People v. Pettie (2017) 16 Cal.App.5th 23 the gang enhancements were reversed under People v. Sanchez (2016) 63 Cal.4th 665 because the prosecution gang officer testified to testimonial hearsay, specifically, “numerous contacts between police officers and defendants based on police reports he did not author…, [and which] were made to document completed crimes such as assaults, intimidation, vehicle theft, and firearms offenses.”

 

Although the trial court instructed the jury to limit its consideration of such evidence to an evaluation of the basis of the gang officer’s opinion, “instructing the jury not to consider the testimony for its truth cannot avoid or cure the confrontation violation.” (People v. Pettie (2017) 16 Cal.App.5th 23, 64.)

 

Compare People v. Tran (Aug. 29, 2022, S165998) [pp. 22- 24] [per  Crawford v. Washington (2004) 541 U.S. 36 and its successors the confrontation clause applies only to “testimonial” hearsay statements and, therefore, “the Sixth Amendment protections under the Aranda-Bruton doctrine, whatever their reach before, are confined to testimonial statements”

 

See also generally:

 


PG X(E)(19)(1.1) Inability Of Limiting Instructions To Cure Evidentiary Error

 


PG X(E)(19)(1.2) Jurors’ Inability To Perform Mental Gymnastics 

 

 

 

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Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s “own mens rea.” (People v. McCoy (2001) 25 Cal.4th 1111, 1122; see also People v. Powell (2021) 63 Cal.App.5th 689, 712-13.) The aider and abettor’s mens rea includes several subjective mental elements as observed by People v. Vizcarra (Oct. 19, 2022, D078869) [pp. 14-15] [“join[ing] the chorus of appellate authorities – from the Supreme Court, our own court, and other Courts of Appeal-which have uniformly upheld aiding and abetting implied malice murder as a viable form of murder liability, notwithstanding the legislative changes effectuated by Senate Bill 1437 and Senate Bill 775. [Citations].]”

As People v. Powell, supra, 63 Cal.App.5th at 713-12 explained:

In the context of implied malice, the actus reus required of the perpetrator is the commission of a life endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act , knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Accordingly, aiding and abetting implied malice murder requires the prosecution to prove the following elements:

  1. By words or conduct,
  2. Aided the commission of a life endangering act,
  3. Knew the perpetrator intended to commit the act,
  4. Intended to aid the perpetrator in the commission of the act,
  5. Knew the act was dangerous to human life,

and

  1. Acted in conscious disregard for human life.

(Ibid.; People v. Langi (2022) 73 Cal.App.5th 972, 983 [citing approvingly to the mens rea standard articulated in Powell]; see also People v. Vizcarra, supra, (Oct. 19, 2022, D078869) [pp. 14-15].)

Because the CALCRIM instructions on aiding and abetting (CC 400, CC 401, CC 402, CC 403) and implied malice (CC 520) do not include these elements they should either be edited or supplemented to include the above listed elements.

Voluntary Intoxication As Defense Theory

In addition to modifying the substantive elements, it may also be necessary to edit the CALCRIM instructions on voluntary intoxication (CC 404, CC 625; CC 3426) to allow jury consideration of voluntary intoxication in deciding whether the prosecution proved the above discussed mens rea elements.

 

 

 

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Jury May Not Consider Victim’s Family Desire For Execution Of Defendant At Death Penalty Sentencing Phase

At the penalty phase of a death penalty trial the prosecution may not elicit the views of a victim or victim’s family as to the proper punishment. (Booth v. Maryland (1987) 482 U.S. 496, 508-509.) The high court overruled Booth in part, but it left intact its holding that “the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” (Payne v. Tennessee (1991) 501 US 808, fn. 2; see also People v. Henriquez (2017) 4 Cal.4th 1, 40 [ prosecutor may not present evidence of or argue that the victim’s family asks for the death penalty…,”].)

However, even if there is no express testimony from family members expressing a desire that the defendant be executed, in many cases the jurors could easily infer such a desire. And such an inference would be especially reasonable in situations where the family members of the victim are allowed to testify about how they were impacted of the victim’s murder. (See e.g., People v. Edwards (1991) 54 C3d 787, 835-36 [following Payne v. Tennessee, supra, 501 US 808].)

As Edwards recognized, such “victim impact” evidence must not be allowed to give the jurors “the impression that emotion may reign over reason…” or allow “irrelevant information or inflammatory rhetoric [to] divert[] the jury’s attention from its proper role.” (Edwards quoting People v. Haskett (1982) 30 C3d 841, 864.)

On the other hand, emotion need not and, indeed, cannot be entirely excluded from the jury’s moral assessment.” People v. Tran (Aug. 29, 2022, S165998) [pp. 62] [citing and quoting (People v. Dykes (2009) 46 Cal.4th 731, 787.) In such an emotional milieu it is highly likely that the jurors will infer or speculate that the victim’s family wants the defendant executed and, in turn, to rely on the family’s wishes during the sentencing deliberations.

Accordingly, it may be appropriate — especially in cases involving victim-impact testimony from family members — to request a limiting instruction precluding the jurors from speculating about and relying on the desire of the victim’s family that the defendant receive the death penalty.

CAVEAT. Before requesting such an instruction counsel will have to evaluate whether or not such an instruction unnecessarily exacerbates the problem. “Singling out a category of evidence for special consideration may cause the jury to give it undue weight in its deliberations.” (People v. Wright (1988) 45 C3d 1126, 1153.) [See also FORECITE F 100.1 Inst 5.] On the other hand, failure to request a cautionary instruction may waive an important appellate issue. These conflicting considerations should be weighed in each individual case.

Sample Instructions

Add immediately before the last sentence of paragraph 1 of CC 763:

However, you must not infer or speculate about whether any of the victim’s family members [would] want the defendant to be executed. Nor may you consider any such inferences or speculation for any purpose during your deliberations.

See also FORECITE 763.3 Inst 1, Inst 2, Inst 3 re: victim impact instructions generally.