Dissenting Opinion Cogently Explains Basis for Defense Requested Pinpoint Instructions
May 29th, 2020
In People v. Ramirez (2019) 40 Cal.App.5th 305 the majority opinion concluded that the defendant’s request for pinpoint instructions related to voluntary manslaughter because one instruction was duplicative of CALCRIM No. 570 and another was argumentative. The dissenting opinion provides a good discussion of why the defense has the right to pinpoint instructions which “pinpoint […]
Tags: Defense Theory Instructions
Death Penalty Aggravation: Jury Properly Instructed to Consider Prior Robbery Under Factor (B) Instead of Factor (A)
May 19th, 2020
The capital trial in People v. Spencer (2018) 5 Cal.5th 642, 691 included a charge for an armed robbery he committed with a group of men five days before the capital murder, and defendant was convicted of that robbery. The jury was properly instructed to consider that robbery under Penal Code section 190.3, factor (b), […]
Tags: CC 764, Death Penalty
Judicial Recognition That Juror Compromise May Produce Unreliable Verdicts When the Jury Is Given An All-Or-Nothing Choice Between Conviction and Acquittal
May 17th, 2020
The rationale for requiring courts to instruct on lesser-included offenses is to avoid forcing the jury into an ” ‘unwarranted all-or-nothing choice’ ” that creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because ” ‘the defendant is plainly guilty of some offense.’ ” […]
Tags: Appeal, Lesser Included Offenses
Failure to Object Does Not Forfeit the Issue on Appeal When There Is a Change in the Law
May 12th, 2020
In People v. Sanchez (2016) 63 C4th 665 held that if an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. In People v. Perez (2020) ___ Cal5th ___ S248730; 2/27/20 defense counsel failed to […]
Tags: Appeal, Evidence and Witnesses, Hearsay
Death Penalty: Consciousness of Guilt as Aggravation — Limiting Instruction Must Be Requested
May 9th, 2020
In People v. Anderson (2018) 5 Cal.5th 372 the defendant, after the capital murder occurred in San Diego, traveled to Oregon, was arrested there, and later made plans to escape from the county jail in Oregon. The CSC held that the evidence was not only admissible at the culpability phase to show consciousness of guilt, […]
Tags: CC 372, Consciousness of Guilt, Death Penalty
CC 334 — Accomplice Witness: No Burden on Defense When Charged Offense Requires Defendant to Have Acted with Accomplice
May 7th, 2020
ALERT: CC 334 MAY UNCONSTITUTIONALLY SHIFT THE BURDEN OF PROOF TO THE DEFENDANT “Sometimes a witness wears two hats: that of a witness, and that of an accomplice. California law permits placing the burden to prove such a witness’s accomplice status on a defendant. (People v. Tewksbury (1976) 15 Cal.3d 953, 963-68.) This is […]
Tags: Burden Of Proof, CC 334
Refusing to Testify After Getting Immunity Is Not Accessory After the Fact
May 5th, 2020
In People v. Partee; S248520; 1/23/2020 the defendant was given immunity but refused to testify. Even though the defendant could have been found in contempt, the DA charged him with accessory after the fact per PC 32. The jury convicted him, and the C/A affirmed. The CSC unanimously reversed because mere silence did not meet […]
Tags: Accessories, CC 440, Lesser Related Offenses
Ring Claim Down But Not Out
April 28th, 2020
California Law Violates USSC Precedents Including Hurst v. Florida (2016) _U.S._ 136 S. Ct. 616 October 7th, 2018 it was suggested that counsel should request an instruction that the jury “could impose a death sentence only if it found that aggravating factors outweighed mitigating factors beyond a reasonable doubt,” based on Ring v. Arizona […]
Tags: CC 763, CC 766, Death Penalty
Proper to Tell Jury to Use Magnifying Glass to Examine Exhibit Photos
April 21st, 2020
Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical […]
Tags: CC 101, CC 332, Expert Testimony, Jury Misconduct
A Butter Knife Was Not a Deadly Weapon Because the Defendant Did Not Use It in a Manner “Capable of” And “Likely to Produce” Death or Great Bodily Injury
April 19th, 2020
In order “for an object to qualify as a deadly weapon based on how it was used, [and demonstrate the commission of an assault with a deadly weapon,] the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury.” (Original emphasis.) […]
Tags: Assault, CC 875, Deadly Weapon
