DNA: Strmix® Probabilistic Genotyping Technology Satisfies The Kelly Standard (People v. Davis (2022) 75 Cal.App.5th 694)
May 25th, 2022

–STRmix® is generally accepted in the relevant scientific community   –Court could rely on validation witness with vested interest in the technology   –Proprietary software can achieve general acceptance without disclosure of source code –Technology with subjective component can be generally accepted   –STRmix® not vulnerable to Evidence Code § 352 objection   –Not an […]


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Meaning Of LWOP: Strategy And Tactics
May 18th, 2022

Simmons v. South Carolina, 512 U.S. 154 (1994), holds that a defendant is entitled to a penalty-phase jury instruction that (if true) life-sentenced prisoners will never be eligible for parole.  For many years, the Arizona Supreme Court held that Simmons does not apply in Arizona because LWOP prisoners are entitled to apply for executive clemency.  […]


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March 2022 CALCRIM Revisions with Selected FORECITE COMMENTARY
May 3rd, 2022

Effective March 21, 2022, the CALCRIM committee changed the instructions set forth below.   See https://jcc.legistar.com/View.ashx?M=F&ID=10537506&GUID=0581B025-AB47-4E81-9694-89A8C8F8B587       Instruction Number   Instruction Title   N/A   User Guide   224   Circumstantial Evidence: Sufficiency of Evidence   250   Union of Act and Intent: General Intent   253   Union of Act and Intent: […]




Judge’s Duty to Draft and Give Instructions Not Included in CALCRIM
May 3rd, 2022

In People v. Pettigrew (2021) 62 Cal.App.5th 477, 500 the judge erroneously instructed the jurors that they could consider the defendant’s attempted suicide as flight per CC 372. Instead, because no CC instructions addressed the issue of attempted suicide vis-a-vis consciousness of guilt the judge (or prosecutor who had presented the attempted suicide evidence and […]


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Accessory After the Fact Liability Requires Affirmative Conduct Intended to Assist or Encourage a Crime
April 8th, 2022

[Update of this post.] Refusing to Testify After Getting Immunity Is Not Accessory After the Fact May 5th, 2020   In People v. K.M. (In re K.M.) ___ Cal App ___(Feb. 17, 2022, A159962) [pp. 5-7] the prosecution asserted that K.M. was guilty of aiding and abetting a robbery because his very presence at the […]


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Imperfect Self Defense Warranted When Defendant’s Account Is Not Totally Delusional
April 8th, 2022

In People v. Schuller (2021) 72 Cal.App.5th 221; 286 Cal. Rptr. 3d 309, 317-19 the Court of Appeal concluded that “the refusal to instruct on imperfect self-defense here was error. While defendant’s testimony included evidence of delusion, his account pertaining to the actual shooting was not entirely delusional and thus provided substantial evidence of an […]


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CC 401 Erroneously Allows the Jurors to Consider the Defendant’s Presence During the Crim or Failure to Prevent the Crime to Find the Actus Reus of Aiding and Abetting Liability
March 2nd, 2022

In People v. K.M. (In re K.M.) ___ Cal App ___ (Feb. 17, 2022, A159962) [pp. 5-7] the prosecution asserted that K.M. was guilty of aiding and abetting a robbery because his very presence at the scene of the crime assisted the perpetrator of the robbery. However, the reviewing court correctly reversed the judgement because […]


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Corpus Delicti: Jurors Must Find Independent Evidence As to All Elements of the Charged Offense
February 10th, 2022

The corpus delicti rule requires “an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements” and “allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.”  (People v. Gonzalez ____C5th____, at ____ (Dec. 2, 2021, S163643) [pp. […]


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Self Defense: Distinction Between Homicide Versus Assault Charges
February 3rd, 2022

“The difference between CALCRIM No. 3470 and CALCRIM No. 505—that is,the difference between self-defense in the homicide context and self-defense that will justify an assault—lies in the type of the threat the defendant believed they faced. To justify a homicide or attempted homicide, the defendant must believe that “danger” or “great bodily harm” is imminent, […]


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Transferred Self Defense
January 27th, 2022

The doctrine of transferred self-defense is available to insulate one from criminal responsibility where his or her act, justifiably in self-defense, inadvertently resulted in the injury of an innocent bystander. Under this doctrine, “just as one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too “one’s lack of criminal intent follows […]


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