Category Archives: Blog

Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice.

 

These defects in the CALCRIM instructions were also recognized in People v. Maldonado (January 30, 2023, A161817) [pp. 13-14] which concluded that CC 401, CC 520, and CC 521 did not require that the jury to find that the defendant “was an aider and abettor who facilitated the killing with personal disregard for human life….”

Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial    statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.

 

After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from him concerning the charged incident. Their conversations, which were recorded, included     incriminating statements that also inculpated the two other codefendants.

 

Admission of these statements did not violate the Confrontation Clause because they were not testimonial.  However, their admission was still improper because they were hearsay and did not qualify as admissions against penal interest.  The hearsay exception does not apply to statements “‘that are self-serving or otherwise appear to shift responsibility to others…,’” even if they were “‘made within a broader narrative that is generally self-inculpatory.’”  Thus, the declarant’s statements were not admissible although they included some admission of the declarant’s complicity “by demonstrating [he] had knowledge of what had occurred…, [because] the statements nonetheless ‘placed the major responsibility’ on his co-defendants.’”

 

The appellate court further held that the statements were made under circumstances questioning their reliability because they “were intended, at least in part, to mitigate [the declarant’s] own blameworthiness[;]” the declarant “provided conflicting descriptions of his and his co-defendants’ respective role[s] in the offense…; [and] all of [his] statements identifying [one codefendant] as the shooter and [the other codefendant] as the driver were preceded by leading questions or narrative statements by the informants.”

Dog Tracking: Cautionary Instruction Not Required Sua Sponte

The CALCRIM Bench Notes to CC 374 state that the court “has a sua sponte duty to instruct on tracking dogs whenever they are used to prove the identity of a defendant. [Citation.]”

 

But see, People v. Westerfield (2019) 6 Cal.5th 632, 707 fn. 8:

 

[W]e have previously recognized that “it is more appropriate to permit defendants to determine whether to request the instruction than to require the trial judge to give it in every case” because dog tracking evidence can be either inculpatory or exculpatory. [Citing and quoting (People v. Diaz (2015) 60 Cal.4th 1176, 1192.]

 

See also,

 

CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte

July 30th, 2019

CALCRIM Erroneously Fails To Require That The Defendant “Personally Killed” The Victim

The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:

 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission or attempted commission of a designated felony when a person was killed, the defendant is now liable under the felony-murder rule only if: (1) the defendant was the actual killer; (2) the defendant was not the actual killer but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in committing murder in the first degree; or (3) the defendant was a major participant in the underlying designated felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).)

 

CC 540A instructs that:

A person [who was the actual killer] may be guilty of felony murder
even if the killing was unintentional, accidental, or negligent.

 

The CC 540A Bench Notes anticipate that this language will also be included in other felony murder instructions:

 

When giving this instruction with CALCRIM No. 540B or with CALCRIM No. 540C, give the bracketed phrase [who was the actual killer].

However, the term “actual killer” is not defined in CC 540A, 540B or 540C.

This is a critical omission because the legislature did not intend the term “actual killer” — as used in SB 1437 (PC 189(e) — to be so broad as to allow an aider and abettor who did not personally kill the victim to be considered an actual killer. To the contrary, the statutory language indicates that the roles of aider and abettor versus actual killer are distinct. SB 1437 says that a defendant isn’t liable for felony murder if that person “is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (People v. Lewis (2021) 11 C5th 952, 959.)

 

Section 190.2, subdivision (c) provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets . . . any actor in the commission of murder in the first degree” is subject to the death penalty. Interpreting this provision, People v. Anderson (1987) 43 Cal.3d 1104, 1147, declared: “[W]hen the defendant is an aider and abettor rather than the actual killer, intent must be proved.” (See also People v. Jones (2003) 30 Cal.4th 1084, 1117.)

 

Moreover, although PC 190.2(b) does not define the phrase “actual killer,” the California Supreme Court has used the term “personally killed” when describing liability of an “actual killer” for the felony-murder special circumstance under section 190.2. (See People v. Jennings (1988) 46 Cal.3d 963, 979; see People v. Banks (2015) 61 Cal.4th 788, 794).) Thus, it is “legal error” to “only” instruct the jury that the prosecution must prove that the defendant “did an act that caused the death of another person.” (People v. Garcia (2020) 46 Cal.App.5th 123, 156.) Such an instruction erroneously allows the jury to find the special circumstance true if it determines that the defendant “caused” the victims death without finding beyond a reasonable doubt that the defendant “personally killed” the victim. (Ibid. [CC instructions allowed DA to erroneously argue that defendant was the actual killer even if he didn’t personally kill the victim].)

 

The court in Garcia explained that the meaning of” ‘actual killer'” under is PC 190.2 is literal: the actual killer is the one who personally killed the victim. (Garcia, supra, 46 Cal.App.5th at pp. 151-152.) To personally kill the victim is to directly cause the victim’s death, not just to proximately cause it. (Id. at 151.) While handing a murder weapon to the person who actually kills the victim might result in liability as an aider and abettor under PC 190.2 subdivision (c) or (d), it does not qualify as an act of an “actual killer” under PC 190.2, subdivision (b). (Garcia, at 154.) Thus, the special circumstance was submitted to the jury on a legally invalid theory, that is, that the defendant could be found liable as the actual killer just for handing duct tape to a coperpetrator, even if the defendant did not personally participate in placing the tape on the victim’s face. (Id. at 154-155; see also People v. Vang (2022) 82 Cal.App.5th 64.)

 

Accordingly, Garcia supports the interpretation of the term “actual killer” as the person (or persons) who personally killed the victim. “The legislative history also supports the view that the Legislature understood the term “actual killer” to mean the person who “personally” commits the homicidal act.” (People v. Vang supra, 82 Cal.App.5th at 86.)

 

Yet no CC instruction tells the jury that an “actual killer” is one who “personally committed the homicidal act.” For example, CC 703 fails to include any definition of actual killer at all. And CC 730 (para 3/4) only requires the jury to find that the underlying felony “was a substantial factor in causing the death of another person….”

 

Accordingly, CC 540A, 540B, and 540C should be modified to preclude the jury from predicating a felony murder conviction on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant “personally committed the homicidal act.” Similarly, the term “actual killer” as used in CC 703, CC 722, CC 723, CC 730, CC 731, and CC 732 should be require a finding that the defendant “personally committed the homicidal act.”

Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice.

These defects in the CALCRIM instructions were also recognized in People v. Maldonado (Dec. 8, 2022, A161817) [pp. 13-14] which concluded that CC 401, CC 520, and CC 521 did not require that the jury to find that the defendant “was an aider and abettor who facilitated the killing with personal disregard for human life….”

CALCRIM Erroneously Fails To Require That The Defendant “Personally Killed” The Victim

The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:

 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission or attempted commission of a designated felony when a person was killed, the defendant is now liable under the felony-murder rule only if: (1) the defendant was the actual killer; (2) the defendant was not the actual killer but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in committing murder in the first degree; or (3) the defendant was a major participant in the underlying designated felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).)

 

CC 540A instructs that:

A person [who was the actual killer] may be guilty of felony murder
even if the killing was unintentional, accidental, or negligent.

 

The CC 540A Bench Notes anticipate that this language will also be included in other felony murder instructions:

 

When giving this instruction with CALCRIM No. 540B or with CALCRIM No. 540C, give the bracketed phrase [who was the actual killer].

 
However, the term “actual killer” is not defined in CC 540A, 540B or 540C.
 
This is a critical omission because the legislature did not intend the term “actual killer” — as used in SB 1437 (PC 189(e) — to be so broad as to allow an aider and abettor who did not personally kill the victim to be considered an actual killer. To the contrary, the statutory language indicates that the roles of aider and abettor versus actual killer are distinct. SB 1437 says that a defendant isn’t liable for felony murder if that person “is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (People v. Lewis (2021) 11 C5th 952, 959.)
 
Section 190.2, subdivision (c) provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets . . . any actor in the commission of murder in the first degree” is subject to the death penalty. Interpreting this provision, People v. Anderson (1987) 43 Cal.3d 1104, 1147, declared: “[W]hen the defendant is an aider and abettor rather than the actual killer, intent must be proved.” (See also People v. Jones (2003) 30 Cal.4th 1084, 1117.)
 
Moreover, although PC 190.2(b) does not define the phrase “actual killer,” the California Supreme Court has used the term “personally killed” when describing liability of an “actual killer” for the felony-murder special circumstance under section 190.2. (See People v. Jennings (1988) 46 Cal.3d 963, 979; see People v. Banks (2015) 61 Cal.4th 788, 794).) Thus, it is “legal error” to “only” instruct the jury that the prosecution must prove that the defendant “did an act that caused the death of another person.” (People v. Garcia (2020) 46 Cal.App.5th 123, 156.) Such an instruction erroneously allows the jury to find the special circumstance true if it determines that the defendant “caused” the victims death without finding beyond a reasonable doubt that the defendant “personally killed” the victim. (Ibid. [CC instructions allowed DA to erroneously argue that defendant was the actual killer even if he didn’t personally kill the victim].)
 
The court in Garcia explained that the meaning of” ‘actual killer'” under is PC 190.2 is literal: the actual killer is the one who personally killed the victim. (Garcia, supra, 46 Cal.App.5th at pp. 151-152.) To personally kill the victim is to directly cause the victim’s death, not just to proximately cause it. (Id. at 151.) While handing a murder weapon to the person who actually kills the victim might result in liability as an aider and abettor under PC 190.2 subdivision (c) or (d), it does not qualify as an act of an “actual killer” under PC 190.2, subdivision (b). (Garcia, at 154.) Thus, the special circumstance was submitted to the jury on a legally invalid theory, that is, that the defendant could be found liable as the actual killer just for handing duct tape to a coperpetrator, even if the defendant did not personally participate in placing the tape on the victim’s face. (Id. at 154-155; see also People v. Vang (2022) 82 Cal.App.5th 64.)
 
Accordingly, Garcia supports the interpretation of the term “actual killer” as the person (or persons) who personally killed the victim. “The legislative history also supports the view that the Legislature understood the term “actual killer” to mean the person who “personally” commits the homicidal act.” (People v. Vang supra, 82 Cal.App.5th at 86.)
 
Yet no CC instruction tells the jury that an “actual killer” is one who “personally committed the homicidal act.” For example, CC 703 fails to include any definition of actual killer at all. And CC 730 (para 3/4) only requires the jury to find that the underlying felony “was a substantial factor in causing the death of another person….”
 
Accordingly, CC 540A, 540B, and 540C should be modified to preclude the jury from predicating a felony murder conviction on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant “personally committed the homicidal act.” Similarly, the term “actual killer” as used in CC 703, CC 722, CC 723, CC 730, CC 731, and CC 732 should be require a finding that the defendant “personally committed the homicidal act.”

Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.

 

After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from him concerning the charged incident. Their conversations, which were recorded, included  incriminating statements that also inculpated the two other codefendants.

 

Admission of these statements did not violate the Confrontation Clause because they were not testimonial.  However, their admission was still improper because they were hearsay and did not qualify as admissions against penal interest.  The hearsay exception does not apply to statements “‘that are self-serving or otherwise appear to shift responsibility to others…,’” even if they were “‘made within a broader narrative that is generally self-inculpatory.’”  Thus, the declarant’s statements were not admissible although they included some admission of the declarant’s complicity “by demonstrating [he] had knowledge of what had occurred…, [because] the statements nonetheless ‘placed the major responsibility’ on his co-defendants.’”

 

The appellate court further held that the statements were made under circumstances questioning their reliability because they “were intended, at least in part, to mitigate [the declarant’s] own blameworthiness[;]” the declarant “provided conflicting descriptions of his and his co-defendants’ respective role[s] in the offense…; [and] all of [his] statements identifying [one codefendant] as the shooter and [the other codefendant] as the driver were preceded by leading questions or narrative statements by the informants.”

Dog Tracking: Cautionary Instruction Not Required Sua Sponte

The CALCRIM Bench Notes to CC 374 state that the court “has a sua sponte duty to instruct on tracking dogs whenever they are used to prove the identity of a defendant. [Citation.]”

 

But see, People v. Westerfield (2019) 6 Cal.5th 632, 707 fn. 8:

 

[W]e have previously recognized that “it is more appropriate to permit defendants to determine whether to request the instruction than to require the trial judge to give it in every case” because dog tracking evidence can be either inculpatory or exculpatory. [Citing and quoting (People v. Diaz (2015) 60 Cal.4th 1176, 1192.]

 
See also,
 

CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte
July 30th, 2019

Defense Theory: Defendant On Medication And No Longer Violent

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 right to a specific instruction on this defense theory. “A trial court should not require a party to rely on abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it. [Citations.]” (Self v. General Motors Corp. (1974) 42 CA3d 1, 10; see also Soule v. General Motors Corp. (1994) 8 C4th 548, 572; see also Sesler v. Ghumman (1990) 219 CA3d 218, 225.) “Therefore, giving an instruction embodying a general rule does not justify refusing a more specific instruction applying the rule to the particular circumstances of the case.” (Ibid.)

 

See also PG III(A)

 

Sample Instruction: The prosecution contends that the defendant will be a future danger in prison. The defense contends that he will not present any future danger in prison because he has been on medication and is no longer violent. In resolving this question consider the evidence that the defendant has been on medication provided by the custodial authorities and that he has not been violent while on this medication.

 

 

Limiting Instruction Does Not Cure Confrontation Error

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 as assaults, intimidation, vehicle theft, and firearms offenses.”

 

Although the trial court instructed the jury to limit its consideration of such evidence to an evaluation of the basis of the gang officer’s opinion, “instructing the jury not to consider the testimony for its truth cannot avoid or cure the confrontation violation.” (People v. Pettie (2017) 16 Cal.App.5th 23, 64.)

 

Compare People v. Tran (Aug. 29, 2022, S165998) [pp. 22- 24] [per  Crawford v. Washington (2004) 541 U.S. 36 and its successors the confrontation clause applies only to “testimonial” hearsay statements and, therefore, “the Sixth Amendment protections under the Aranda-Bruton doctrine, whatever their reach before, are confined to testimonial statements”

 

See also generally:

 


PG X(E)(19)(1.1) Inability Of Limiting Instructions To Cure Evidentiary Error

 


PG X(E)(19)(1.2) Jurors’ Inability To Perform Mental Gymnastics