When Does the Evidence Support Instruction on “Kill Zone” Theory of Attempted Murder?
June 5th, 2019

People v. Medina (2019) 33 Cal.App.5th 146 held that the judge erroneously gave the CALCRIM “kill zone” instruction (CC 600) because there was no evidence that the defendant had “a primary target” whom he attempted to kill:   For purposes of an attempted murder charge, intent to kill does not transfer to nontargeted individuals. Nonetheless, […]


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CSC Opinion on “Kill Zone” Instruction Expected in Early July 2019
June 3rd, 2019

This post California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine March 30th, 2015 discusses People v. Canizales, No. S221958, a case concerning the “kill zone” theory of attempted murder which is currently before the CSC. On April 3, the CSC heard oral argument on another in Canizales. An opinion can […]


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CSC to Consider Whether Eyewitness Certainty Instruction Violates Due Process?
June 3rd, 2019

Studies have persuaded courts in other states to modify their standard jury instruction to remove certainty as a relevant consideration. (See, e.g., Commonwealth v. Santoli (1997) 424 Mass. 837, 846 [“there is significant doubt about whether there is any correlation between a witness’s confidence in her identification and the accuracy of her recollection”]; State v. […]


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Will the CSC Finally Recognize That Eyewitness Certainty Is Not a Reliable Indicator of Accuracy People v. Simpson UNPUBLISHED (Dec. 13, 2018, No. A146962)?
December 19th, 2018

In People v. Simpson UNPUBLISHED (Dec. 13, 2018, No. A146962) the defense argued at trial and on appeal that the CALCRIM instruction on eyewitness identification (CC 315) erroneously told the jurors that the “certainty” of an eyewitness about an identification is relevant to determining whether the identification was reliable. Simpson relied on scientific research cited […]


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Modification of CC 3472 to Reflect Escalation Doctrine
December 11th, 2018

CC 3472 provides as follows:   “A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”   Under the “plain terms” of this instruction the use of “any amount of ‘force’ entirely preclude[s] [a defendant] from invoking […]


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Pre-Deliberation Instructions (CC3550): Modification When Received Benefits from Prosecution in Exchange for Testimony
December 4th, 2018

Considerations of punishment are important with respect to witnesses who have received or been promised benefits from the prosecution such as immunity or leniency. (See e.g., CC 105 and CC 226.) For example, in Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), “the Government’s case […]


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Defendant’s Statements Before Trial vs. Testimony at Trial: Clarification of Potentially Misleading Language in CC 358
November 27th, 2018

Jurors could interpret the first and second paragraphs of CC 358 to apply to both statements made by the defendant before trial and to the testimony of the defendant during trial. To clarify this potential ambiguity CC 358 could be modified to provide as follows [added language is bolded]:   [Para 1; sentence 1] You […]


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What is a Developmental Disability for Purposes of Giving Witness Cautionary Instruction (CC 331)?
November 20th, 2018

Pursuant to PC 1127g, CC 331 provides specific guidance on evaluating the testimony of persons with “developmental, cognitive, or mental disability.”   However, the statutory language does not define the terms “developmental disability” or “cognitive, mental, or communication impairment.” In such cases it is appropriate to look to the legislative history for guidance. In so […]


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Limited Evidence Instructions Must Be Separately Requested
November 12th, 2018

The CALCRIM instructions on limited evidence (CC 303, CC 304, and CC 305) are not required to be given in the absence of a request by counsel. (See Evidence Code section 355; People v. Simms (1970) 10 CA 3d 299, 310 [CC 303 and CC 304]; People v. Miranda (1987) 44 C3d 57, 83 [CC […]


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Watson Standard of Prejudice on Appeal Requires “Merely a Reasonable Chance” of a More Favorable Result
November 7th, 2018

In People v. Sandoval (2015) 62 Cal.4th 394 the CSC reversed the lying in wait special circumstance because the trial judge failed to sua sponte instruct, per CJ 8.83 or CJ 8,83.1 that between two reasonable inferences from circumstantial evidence, the jury must choose the inference pointing to innocence: “We … conclude that the prosecution’s […]


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