Judicial Misconduct May Require Reversal Error
November 3rd, 2021

CC 101 admonishes the jurors as follows:   Do not take anything I say or do during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be. However, such admonitions are not always sufficient to cure judicial misconduct. For example, in     People v. Nieves (May […]


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Justice Liu Identifies Defect in California Death Penalty Process
October 20th, 2021

Writing for a unanimous court, Justice Liu’s opinion in People v. McDaniel ____ Cal 5th _____(Aug. 26, 2021, S171393) rejected McDaniel’s arguments concerning the state constitutional and statutory right to jury trial.   However, Justice Liu added a 30-page concurring opinion concerning a related federal constitutional issue based on Apprendi v. New Jersey (2000) 530 […]


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Death Penalty Mitigation: Prosecutor’s Failure to Prove Other Violent Crimes or Felony Convictions Is a Mitigating Circumstance
October 15th, 2021

CC 763 instructs the jurors to consider, inter alia, the following factors in deciding whether to impose a death judgement: (b) Whether or not the defendant has engaged in violent criminal activity other than the crime[s] of which the defendant was convicted in this case. Violent criminal activity is criminal activity involving the unlawful use, […]


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CC 1192: Rape Trauma Testimony — Expert erroneously allowed to testify that it is “rare” for children to make up stories about sexual abuse
October 13th, 2021

In People v. Lapenias (2021) 67 Cal.App.5th 162 an expert testified regarding CSAAS, a theory that identifies typical behaviors of sexually abused children. The expert had no information or knowledge about the facts of the instant case. Defense counsel did not cross-examine the expert.  Instead, after an off-the-record sidebar, the trial court read aloud five […]


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CALCRIM Revisions Effective October 1, 2021
October 12th, 2021

Effective 10/01/2021 CALCRIM revised instructions listed below. See https://jcc.legistar.com/View.ashx?M=F&ID=9785541&GUID=96E612F7-0BC9-43FE-814D-86F615957765     Number   Title   336   In-Custody Informant   417   Liability for Coconspirators’ Acts   582 Involuntary Manslaughter: Failure to Perform Legal Duty–Murder Not Charged   625   Voluntary Intoxication: Effects on Homicide Crimes   775   Death Penalty: Mental Retardation   840 […]


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Mistake of Law as Defense Theory to Specific Intent Crime
October 4th, 2021

The court has a sua sponte duty to give CC 3411 if a defendant charged with a specific intent crime is appropriately relying on this defense or there is substantial evidence that a defendant’s good faith mistake of law provides a valid defense to a specific intent crime and the defense is not inconsistent with […]


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Improper Prosecutorial Statements That It Is Illegal for Jurors to Refuse to Deliberate and that Jurors Must Report any Such Refusal
September 30th, 2021

In People v. Morales (2021) 67 Cal.App.5th 326 the prosecutor stated in closing argument that it was “illegal” for jurors to refuse to deliberate and admonished that the jurors must report the failure to deliberate, and allegedly conveyed that jurors had no power to engage in nullification.   The Court of Appeal held that the […]


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Porch Is Not Part of the Residence for the Presumption of Fear from Entry
September 27th, 2021

California’s “stand your ground” law is PC 198.5 which provides that a person using force likely to cause death or great bodily injury (GBI) within his or her residence is presumed to have held a reasonable fear of imminent death or GBI to themselves or a member of their household when that force is used […]


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Improper to Withhold Juror Names from Counsel Absent Actual Risk to the Jurors
September 25th, 2021

In People v. Lopez (2021) 65 Cal.App.5th 484 the judge withheld from the attorneys the names of prospective jurors, identifying them only by their badge number, out of a concern the attorneys or a member of the public or press would obtain additional information about the jurors or contact them. Lopez objected, and the court […]


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Limitations on Selection of an Anonymous Jury and Access to Juror Names
September 24th, 2021

People v. Lopez (June 14, 2021, B305783) 65 Cal.App.5th 484 affirmed the rule allowing the selection of an anonymous jury but recognized important limitations on such a practice. First, while Code of Civil Procedure § 237 requires juror identifying information to be sealed after the jury returns its verdict, § 237 “does not authorize sealing of […]


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