Defense Theory: Defendant On Medication And No Longer Violent
December 20th, 2022
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 […]
Tags: CC 763, Death Penalty, Defense Theory Instructions
Limiting Instruction Does Not Cure Confrontation Error
November 30th, 2022
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 […]
Tags: CC 1400, CC 1401, CC 332, Gangs, Limiting Instructions
Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
November 30th, 2022
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 […]
Tags: Accomplice Liability, Aider and Abettor, CC 3426, CC 400, CC 401, CC 403, CC 404, CC 520, CC 625, CC402, Defense Theory: Intoxication, Defense Theory: Mens Rea/Intent, Elements Of Charge, Implied Malice, Intoxication, Mens Rea, Mens Rea: Intent, Mens Rea: knowledge; CALCRIM Not Always Up To Date, Voluntary Intoxication
Jury May Not Consider Victim’s Family Desire For Execution Of Defendant At Death Penalty Sentencing Phase
November 30th, 2022
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 […]
Tags: CC 763, Death Penalty
Does Defendant’s Temporary Refusal to Attend Trial Justify A Consciousness of Guilt Instruction?
October 24th, 2022
In People v. Gomez (2018) 6 Cal.5th 243, 283 the defendant briefly refused to leave his jail cell and attend trial before the deputy sheriff advised him that an extraction order had been issued by the judge. Defendant’s disobedience resulted in a 38-minute delay in the proceedings. At the conclusion of the trial, the judge […]
Tags: Consciousness of Guilt
Allocution: Judge Cannot Protect Defendant From Himself Should Allocution Be Permitted
October 17th, 2022
Although a defendant does not have the right to make a statement to the jury other than while testifying as a witness (or acting as defense counsel), if the trial court permits him to make a statement, it cannot censor what he says, even if it is harmful to defendant. (See People v. Anderson (2018) […]
Tags: CC 100, CC 355, Self-Representation
Conviction of Armed Robbery at Guilt Trial Is Relevant to Death Penalty Sentencing Under Factor (a), Not (b)
October 10th, 2022
Defendant’s capital trial 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), other violent criminal activity, instead of factor (a), the […]
Tags: CC 763, Death Penalty
Limiting Ability of Penalty Phase Jurors to Consider Consciousness of Guilt As Non-Statutory Aggravation
October 3rd, 2022
When consciousness of guilt evidence is admitted at the guilt trial of a death penalty trial that evidence may include “ ‘aggravating evidence of a type not statutorily authorized.’ [Citation.]” (People v. Anderson (2018) 5 Cal.5th 372, 393.) For example, consciousness of guilt may be interpreted by the jurors “as evidence of bad character, and […]
Tags: Cautionary and Limiting Instructions, CC 362, CC 372, CC 378, CC 763, Death Penalty
Aggravating Circumstances: Report of Rumors Is Not Evidence of “Solid Value”
September 26th, 2022
In People v. Penunuri (2018) 5 Cal.5th 126, 168-169 the judge erred in allowing evidence of other violent criminal activity under Penal Code section 190.3, factor (b), concerning a nonfatal shooting that was committed two months before the capital murders because there was insufficient evidence that defendant “committed that assault” and “[t]here was no direct […]
Tags: CC 764, CC 765, Death Penalty
Competency of Defendant Must Focus on the Defendant’s Present Abilities, As Opposed to the Possibility That the Relevant Abilities May Be Restored in the Future
September 19th, 2022
Under both the federal due process clause as interpreted by Dusky v. United States (1960) 362 U.S. 40, and Penal Code section 1367, a finding of incompetency does “not require a specific medical diagnosis drawn from the current version of the Diagnostic and Statistical Manual of Mental Disorders, [or] that the defendant’s mental disorder fit […]
Tags: CC 3451, Competency of Defendant
