Improper Prosecutor Argument That Reasonable Doubt Requires “Some Evidence on Which to Base A Doubt”
September 23rd, 2021
In People v. Johnsen (2021) 10 Cal.5th 1116, 1166-67 the prosecutor misstated the law by telling the jurors that “[t]here has to be some evidence on which to base a doubt” because this definition of reasonable doubt “preclude[d] jurors from having reasonable doubt solely based on the insufficiency of the prosecution’s evidence.” The CSC held […]
Tags: Beyond A Reasonable Doubt, Burden Of Proof, CC 100, CC 101, CC 220
PC 207(a) Kidnapping Requires Force, Not Just Deception
September 16th, 2021
CJ 1201 states that the defendant must use either force or deception to move a victim. However, while “deception may certainly supplement force, it cannot supplant it.” (People v. Nieto (2021) 62 Cal.App.5th 188, ___[276 Cal. Rptr. 3d 379, 383].) Accordingly, “because deception is not an alternative to force under [PC] 207 subdivision (a), [CC].1201 […]
Tags: CC 1201, Kidnapping
Competence of Defendant: Improper Reference to “Mental Retardation”
September 15th, 2021
CC 3451 instructs that “mental retardation” is an example of a developmental disability. However, the legislature has removed from derogatory references to “mental retardation” and other such terms from the applicable statute. (PC 1367(a).) Accordingly, the term “mental retardation” as used in the final paragraph of the instruction should be replaced with the term “intellectual […]
Tags: CC 3451, Competency of Defendant
Limitations on Selection of an Anonymous Jury and Access to Juror Names
September 14th, 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 […]
Tags: Cautionary and Limiting Instructions, CC 101, Courtroom Security, Sample Instructions
CC 1807: Felony Value Threshold Applies to Identity Theft
September 6th, 2021
People v. Baratang (2020) 56 Cal.App.5th 252, 260–263 concluded that the $950 requirement in PC 368(d)1) applies to a felony violation of PC 368(d) based on identity theft. Accordingly, the trial court erred in modifying CC 1807 to instruct otherwise. See also, this post.
Tags: CC 1807, Identity Theft
Telling Jurors That the Presumption of Innocence Starts to Lift with the Testimony of the First Witness Is A “Significant Mischaracterization of the Law”
August 19th, 2021
“It is well established that the presumption of innocence continues into deliberations. [Citation to People v. Dowdell (2014) 227 Cal.App.4th 1388, 1408.] It could hardly be otherwise, since jurors are required to keep an open mind and not begin to decide any issue—not only the ultimate issue of guilt—until all the evidence has been presented […]
Tags: Burden Of Proof, CC 101, Presumption of Innocence, Prosecutor Misconduct
Juror Anonymity: Jury Must Be Assured That Reasons for Anonymity Are NOT Related to Security
August 12th, 2021
The empanelment of an anonymous jury is allowed only where (1) there are strong grounds for concluding that it is necessary to ensure juror protection and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused. (People v. Thomas (2012) 53 Cal.4th 771, […]
Tags: Cautionary and Limiting Instructions, CC 101, Courtroom Security, Sample Instructions
CC 200 Does Not Cure DA’s Misstatement of the Law When Instructions Are Silent on the Issue
August 5th, 2021
CC 200, paragraph 4, admonishes the jurors as follows: If you believe that the attorney’s comments on the law conflict with my instructions, you must follow my instructions. Typically reviewing courts rely on this admonition to assume that the jurors relied on the instructions instead of the arguments of counsel. When argument runs […]
Tags: Appeal, CC 200, Standard of Prejudice, Strategy Notes and Practice Ideas
CSC to Consider What Standard of Prejudice Applies to Instructional Error on Defense Theory
July 26th, 2021
In People v. Hendrix REV. GTD. 1/20/21 S265668 (B298952; 55 Cal.App.5th 1092) the defendant told police that he entered the victim’s backyard and tried to force entries believing this to be his cousin Trevor’s house. The reviewing court acknowledged that appellant if subjectively believed that he was at Trevor’s house, the jury could, in theory, […]
Tags: Appeal, Apprendi, CC 1600, CC 1800, CC 1863, CC 3406, Defense Theory Instructions, Mistake Of Fact, Standard of Prejudice
When is a Mistake of Fact as to Victim’s Age a Defense?
July 15th, 2021
PC 261; PC 261.5(a) & (b); 289(h)&(i) In People v. Hernandez (1964) 61 Cal.2d 529, 529-530 the CSC analyzed the legislative intent behind PC 261, which defined sex with a female under the age of 18 years as rape (commonly known as statutory rape). The issue in the case was whether “the trial court erred […]
Tags: CC 1070, CC 1071, CC 1072, CC 1082, CC 1101, CC 1102, CC 1243, CC 3406, CC 3414, Mistake Of Fact, Statutory Rape
