Evidence Limited to Courtroom: Sua Sponte Duty to Admonish
April 10th, 2015

  The court has a sua sponte duty to give CC 101, limiting jurors to considering evidence that is presented in the courtroom. (See People v. Carter (2010)182 Cal. App. 4th 522.)   It is critical that jurors be instructed that they cannot conduct any independent research on a case and should not discuss the […]


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California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine.
March 30th, 2015

  In People v. Canizales, S221958 (E054056; 229 CA 4th 820) the defendant filed a petition for review which framed the question presented as follows:   In a criminal case charging attempted murder of a victim who was not killed or even injured, is it error to instruct the jury with a kill-zone instruction if […]


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Attempted Criminal Threat Requires Dual Jury Findings
March 27th, 2015

  People v. Chandler (2014) 60 Cal. 4th 508, 524-525 relied on First Amendment concerns in construing PC 422 to require both a subjective and objective element:   To avoid substantial First Amendment concerns associated with criminalizing speech, we construe the offense of attempted criminal threat to require proof that the defendant had a subjective […]


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Chapman or Watson: What is the Standard of Prejudice For Misinstruction on Defense Theory?
March 23rd, 2015

  In People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220 the trial judge failed to correctly instruct the jury on the defense theory of mistake of fact. On appeal the defendant cited three federal circuit court cases holding that the failure to instruct on a defense constituted federal constitutional error which, under the […]


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“On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense
March 20th, 2015

  Ordinarily, the state need not prove the precise date on which an alleged offense occurs. (See PC 955.) CC 207 is the CALCRIM instruction on this point.   However, where the state charges a defendant with a criminal offense on occurring during particular dates — and when the dates form the basis of the […]


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Is Misdemeanor Sexual Battery a Lesser Included of Sexual Battery by Fraud?
March 16th, 2015

  There is a split of authority among the Courts of Appeal on the question of whether or not misdemeanor sexual battery (PC 243.4(e)(1)) is a lesser included offense of sexual battery by fraud (PC 243.4 (c)(3).) (See, People v. Babaali (2009) 171 Cal.App.4th 982 and People v. Smith (2010) 191 Cal.App.4th 199.)   In […]


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Mistake of Fact – Role of Reasonableness
March 13th, 2015

  Mistake of Fact – Jury May Consider Reasonableness of Belief on the Issue of Good Faith   It is well established that a good faith mistake of fact can negate specific mental state elements of a charge such as knowledge. (See People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220; People v. Lawson […]


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Does Implausible or Illogical Testimony Warrant Instructing Per CC 361 on Defendant’s Failure to Explain or Deny Evidence?
March 10th, 2015

  In People v. Cortez, S211915 (B233833; nonpublished opinion; (Cal. Sept. 18, 2013) the Supreme Court granted the prosecution’s petition for review to consider, the following issues: In the petition for review the attorney general characterized these issues as follows:   1. May a court instruct the jury with CALCRIM No. 361 on the failure […]


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What Is A “Major Participant” Within The Meaning Of Penal Code 190.2(d)?
March 7th, 2015

  Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment […]


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Court Of Appeal Reverses For Failure To Instruct On Lesser Offense
February 27th, 2015

  The two subdivisions of Vehicle Code section 23110 state:   “(a) Any person who throws any substance at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor. “(b) Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal […]


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