Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime
September 3rd, 2019
In re Taylor (2019) 34 Cal. App. 5th 543 held that given the lack of evidence that defendant planned anything more dangerous than a garden-variety armed robbery, reckless disregard to the risk to human life, for purposes of the felony murder special circumstance under PC 190.2 (d), was not established by defendant’s actions after the […]
Tags: CC 540A, CC 540B, CC 540C, CC 702, CC 703, CC 730, CC 731, CC 732, Felony Murder, Felony Murder Special Circumstance, Special Circumstances, Tison/Banks
CC 373 Improperly Implies That The Dog’s Identification Of The Defendant Or Location Is A “Fact”
August 30th, 2019
CC 373 instructs as follows: You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant [or a location]. Before you may rely on dog tracking evidence, there must be: […]
Tags: Cautionary and Limiting Instructions, CC 374, CJ 2.16
Defense Theory Instruction On Lesser Included Offense Must Be Given Even If Evidence Of Lesser Offense Is “Unconvincing Or Subject To Justifiable Suspicion”
August 26th, 2019
“California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148–149.) The requirement applies when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. (Id. at pp. 162, 177.) “In […]
Tags: Defense Theory Instructions, Standard of Review
Should Consciousness Of Guilt Instructions Such As Flight Be Limited To The Determination Of Guilt In Death Penalty Case?
August 19th, 2019
People v. Anderson (2018) 5 Cal. 5th 372, 391-93 recognized that evidence showing consciousness of guilt, such as flight or escaping from jail, is generally admissible within the trial court’s discretion. Thus, the existence of alternate explanations for the defendant’s behavior does not necessarily defeat the court’s discretion to admit consciousness-of-guilt evidence. However, when consciousness […]
Tags: CC 362, CC 371, CC 372, Death Penalty
Implied Malice Murder: Defendant Must Be Subjectively Aware That The Committed Act Was “Inherently Dangerous To Human Life”
August 12th, 2019
Implied malice has both objective and subjective components. The objective test requires “‘“an act, the natural consequences of which are dangerous to life … .”’” (People v. Knoller (2007) 41 Cal.4th 139, 143.) This means the act must carry “‘a high degree of probability that it will result in death.’” (Id. at p. 152.) The […]
Tags: CC 2720, CC 3426, CC 520, CC 580, CC 581, Involuntary Manslaughter
CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte
July 30th, 2019
In People v. Westerfield (2019) 6 Cal. 5th 632 evidence that a cadaver dog had “alerted” to a scent in defendant’s motorhome was admitted before the jury. The jury was instructed pursuant to CALJIC No. 2.16 that dog tracking evidence is not sufficient by itself to permit an inference that the defendant is guilty of […]
Tags: Cautionary and Limiting Instructions, CC 374, CJ 2.16
Scales of Justice Metaphor Does Not Accurately Describe Burden of Proof Beyond a Reasonable Doubt Which Requires That Proof That Goes “Substantially” Beyond a State of “Equipoise”
July 28th, 2019
In People v. Daveggio and Michaud (2018) 4 Cal. 5th 790, 838-44 the judge addressed several groups of prospective jurors who had yet to complete juror questionnaires. In each session the judge discussed the presumption of innocence and requirement of proof beyond a reasonable doubt, in concepts such as the following: The most important concept […]
Tags: Burden Of Proof, CC 103, CC 220, Presumption of Innocence
Is Flight Instruction Prejudicial Even Though Defendant Absent by Judge’s Order?
July 23rd, 2019
In People v. Johnson (2018) 6 Cal.5th 541 the judge excluded Johnson from the courtroom for the entire trial after he assaulted his lawyer; the jurors never saw or heard him. At guilt phase, the judge instructed the jury not to consider his absence, but also gave a standard flight instruction that allowed use, with […]
Tags: CC 372, Consciousness of Guilt
Should Burden of Proof Be Illustrated by Examples Based on the Level of Certainty Needed to Make Decisions “In The Ordinary Affairs of Life?”
July 16th, 2019
In People v. Potts (2019) 6 Cal. 5th 1012, 1039-41 the court’s introductory comments to the jury panels illustrated the concept of circumstantial evidence as follows: Let’s assume that you or your spouse prepared … a raspberry pie and you set that on the counter to cool. There’s nobody home except you and your […]
Tags: CC 103, CC 220, CC 221
Is It Proper to Instruct That an Excluded Defendant Was “Voluntarily” Absent?
July 10th, 2019
In People v. Johnson (2018) 6 Cal.5th 541, 589 the judge excluded Johnson from the courtroom for the entire trial after he assaulted his lawyer; the jurors never saw or heard him. The judge instructed the jury that defendant was “voluntarily” absent and they should not take this into account. Defense counsel objected that the […]
Tags: CC 372, Consciousness of Guilt
