Self Defense: Escalation of Nondeadly Assault
July 25th, 2016
Where a counter assault to a nondeadly attack is so sudden and perilous that no opportunity is given to “decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense.’ [Citations.]” (People v. Salazar (2016) 63 C4th 214, 249.) However, People v. Gleghorn (1987) 193 CA3d 196, 201 […]
Tags: CC 3471, Self Defense
Variance Between Reporter’s Transcript And Written Instructions
July 22nd, 2016
—Case By Case Analysis When there is a variance between the reporter’s transcript and the written instructions, a case by case analysis is used to determine which part of the record is more credible. (People v. Smith (1983) 33 C3d 596, 599; see also People v. Carter (2003) 30 C4th 1166, 1199 [“where the clerk’s […]
Tags: Appeal, CC 200, Oral Instructions, Written Instructions
Improper to Instruct That an “Abiding Conviction” Means A Verdict “You Will Be Comfortable with … a Year from Now”
July 21st, 2016
In People v. Muniz [UNPUBLISHED] (2011) 198 CA4th 1324, at the beginning of voir dire, the judge instructed the jurors that in “plain English” an “abiding conviction” means “when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now.” The majority opinion […]
Tags: Burden Of Proof, CC 100, CC 103, CC 220, Presumption of Innocence
Improper to Describe Proof Beyond a Reasonable Doubt in Terms of “Every Day” Decisions
July 20th, 2016
In People v. Nguyen (1995) 40 CA4th 28, 35-37, the prosecutor told the jury that people apply the reasonable doubt standard “every day” and it is the same standard people customarily use in deciding whether to change lanes when driving or whether to get married. The court of appeal held that this argument trivialized the […]
Tags: Burden Of Proof, CC 100, CC 103, CC 220, Presumption of Innocence
Judge Has Sua Sponte duty to Give Cautionary Instruction re: Jury Conduct But Standard of Prejudice Not Resolved
July 19th, 2016
In People v. Carter (2010) 182 CA4th 522, 531-534 the reviewing court held that the failure to give CC 101 sua sponte was error. However, the parties disagreed on whether the harmless error analysis should be governed by People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable a more favorable result would have […]
Tags: Appeal, Cautionary and Limiting Instructions, CC 101, Judge Duty to Instruct, Standard of Prejudice, Sua Sponte
Juror Misconduct: Critical Examination of Evidence vs. Acquisition of New Evidence
July 18th, 2016
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
Defendant’s Failure to Explain or Deny Evidence: CSC Adopts the Narrower View of When CC 361 Should Be Given
July 14th, 2016
The defendant in People v. Cortez (2016) 63 C4th 101 testified to an exculpatory version of events which conflicted with her recorded statement to the police. CC 361, stating that a testifying defendant’s failure to explain or deny evidence against her may be considered by the jury, was given over objection. The CCA majority held […]
Tags: CC 361, Witness Credibility
Defense Has No Burden to Prove Any Specific Facts
July 13th, 2016
CC 100, paragraph 3, sentence 4, provides as follows: “Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty.” CC 100 is technically correct as far as it goes. (See People v. Ibarra (2007) 156 CA4th 1174, 1179.) However, it only discusses the presumption of innocence in the […]
Tags: Burden Of Proof, CC 100, CC 103, CC 220, Defense Theory Instructions, Presumption of Innocence
The Chiu Doctrine Applies to Conspiracy Liability
July 12th, 2016
In Chiu the Supreme Court held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. An aider and abettor’s liability for premeditated first degree murder must be based on direct aiding and abetting principles. See The Chiu Doctrine Explained In re Lopez (2016) 246 […]
Tags: Accomplice Liability, Aider and Abettor, Appeal, Attempted Murder, CC 415, CC 416, CC 417, CC 521, CC 600, CC 601, Chiu Doctrine, Conspiracy, Premeditation and Deliberation, Standard of Prejudice
CC 3428 Too Narrowly Limits Jurors’ Use of Mental State Evidence
July 11th, 2016
In People v. Townsel (2016) 63 C4th 25, the jury was instructed with a version of CJ 3.32 which provided as follows: “Evidence has been received regarding a mental defect or mental disorder of the defendant, Anthony Townsel at the time of the crime charged in Counts 1 and 2. You may consider such evidence […]
Tags: CC 3428, Defense Theory: Mens Rea/Intent, Intent, Mens Rea
