Category Archives: Blog

Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory

When a single act is charged as the basis for the attempted murders of two or more persons, the intent to kill element must be proved independently as to each alleged victim. A so-called “kill zone” instruction is only proper when: (1) the circumstances of the defendant’s attack on a primary target are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm and to kill everyone present to ensure the primary target’s death; and (2) the alleged attempted murder victim who was not the primary target was in that zone of harm (People v. Canizales (2019) 7 Cal.5th 591).

 

In People v. Mumin (2021) 68 Cal.App.5th 36,  the parties disputed the proper standard of review of a trial court’s decision to instruct on this theory: Mumin argued the reviewing court must find that the only reasonable inference from the evidence is that the defendant had the requisite intent; respondent asserted it is sufficient if the reviewing court concludes the evidence supports a reasonable inference that the defendant had the necessary intent, even if an opposite inference is also reasonable. The court agreed with respondent. The evidence was sufficient to warrant a kill zone instruction because defendant fired a number of shots through several doors that police were attempting to enter to arrest him, intending to kill anyone who might be behind either door. In reaching this result the court disagreed with In Re Rayford (2020) 50 Cal.App.5th 754, which concluded that the reviewing court must be convinced that the only reasonable inference from the evidence is that the defendant had the requisite intent.

Death Penalty Sentencing: Jurors Are Bound by Counsel’s Argument That Lingering Doubt Is Mitigation

At the sentencing phase of a capital case the jury may properly consider evidence of lingering or residual doubt as a mitigating factor. However,

… there is no constitutional right to instructions on lingering doubt. [Citations.] Instructions to consider the circumstances of the crime [citations], together with defense argument highlighting the question of lingering or residual doubt, suffice to properly put the question before the penalty jury. [Citation]. (People v. Streeter (2012) 54 Cal.4th 205, 265-66, internal punctuation omitted); see also People v. Musselwhite (1998) 17 C4th 1216, 1273, [specific instruction on lingering doubt is not required, even on request, because lingering doubt is encompassed within the catch-all factor “k” language.].)

And more recently the Court has continued to reject defense arguments that a lingering doubt should be given whether requested or not. (See People v. McDaniel (Aug. 26, 2021, S171393) [pp. 1737] [“the circumstances of this case do not warrant departure from our precedent holding that the lingering doubt instruction is not constitutionally required. [Citation]”].)

This line of cases is founded on the assumption that the jurors will follow and abide by defense counsel’s argument that lingering doubt as to guilt is a mitigating factor. Thus, if a request for specific instruction (see e.g., F 763.3) ***LINK*** is denied, counsel should be free to make an argument to the jury such as the following:

The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.

 (See also FORECITE F 200.5 Inst 2;  PG VI(C)(10);  PG I(F).)

It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also

 

F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction

 

 

 

In Musselwhite, the court said: “defendant provides no explanation why the factor (k)—derived instruction that was given to the jury—failed to convey the notion of residual doubt in his case.” [Original emphasis.]

Responses to this position could include the following:

  1. Evidence could be presented as to the empirical studies which have proven that jurors do not in fact fully understand the currently utilized penalty phase instructions. (See, PG II(K).)
  2. Since the Supreme Court has concluded that the lingering doubt factor is included within factor “k,” counsel should be free to rely on the Supreme Court’s position during argument. Thus, counsel might argue: “The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.” (See FORECITE PG VI(C)(10); see also PG I(F).) It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also FORECITE F 200.5 Inst 2.)

By promoting a reliable, non-arbitrary, and individualized sentencing determination, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)

 

 

F 763.3 (Factor a) Inst 9 (a-e) Lingering Doubt
F 763.3 (Factor a) Inst 10 Definition Of Lingering Doubt
F 763.3 (Factor a) Inst 11 Lingering Doubt As To Extent Of Defendant’s Guilt
F 763.3 (Factor a) Inst 12 Instruction That Lingering Doubt Is Included In Factor (a) and/or Factor (k

 

 

 

F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction

*Add to CC 200:

If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless it conflicts with my instructions or I sustain an objection to counsel’s argument on that point. Thus, even if there is no specific instruction on the rule argued by counsel, you must treat it as the equivalent of an instruction to be considered and followed, if applicable, along with all the other instructions.

 

 

We have previously held that “`[t]here is no constitutional entitlement to instructions on lingering doubt.’ ( People v. Earp (1999) 20 Cal.4th 826, 903 [ 85 Cal.Rptr.2d 857, 978 P.2d 15].) Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and any other circumstance extenuating the gravity of the crime ( id., factor (k)), together with defense argument highlighting the question of lingering or residual doubt, suffice to properly put the question before the penalty jury.” ( People v. Demetrulias (2006) 39 Cal.4th 1, 42 [ 45 Cal.Rptr.3d 407, 137 P.3d 229].) The court here instructed the jury to consider the circumstances of the crime and any other circumstances extenuating the gravity of the crime. Defense counsel gave a lengthy argument about lingering doubt, in which he directly stated “lingering doubt [is] . . . an aspect of mitigation.” Defendant fails to convince us that the jury was not adequately informed that they could consider lingering doubt as a factor in mitigation.

People v. Hamilton (2009) 45 Cal.4th 863, 948-49

***

 

 

 

( People v. Hamilton, supra, 45 Cal.4th at p. 948, 89 Cal.Rptr.3d 286, 200 P.3d 898.)

The court here instructed the jury to consider the circumstances of the crime and any other circumstances extenuating the gravity of the crime. Defendant presented extensive evidence of lingering doubt as to his state of mind at the time he committed the crime, which was the only disputed issue open to lingering doubt. (Compare with People v. Gay, supra, 42 Cal.4th at pp. 1223–1226, 73 Cal.Rptr.3d 442, 178 P.3d 422 [prejudicial error to exclude lingering doubt evidence contesting defendant’s guilt as shooter when coupled with court’s instruction to jury to disregard defense counsel’s opening statement that it would hear lingering doubt evidence and instruction on conclusiveness of prior guilt jury’s findings].) Defense counsel extensively argued lingering doubt during opening and closing arguments, in which he urged the jury to reconsider defendant’s guilt and his state of mind. Thus, contrary to defendant’s claim, the trial court’s rulings did not remove the concept of lingering doubt from the jury’s consideration.

People v. Streeter (2012) 54 Cal.4th 205, 265-66

 

n the penalty phase, the prosecution and defense introduced the guilt-phase eye-witness testimony and ballistics evidence that McDaniel asserts is relevant to lingering doubt. In closing argument, defense counsel emphasized the ballistics evidence from the gun linked to Harris to suggest that McDaniel did not cause the “mayhem” alone. Defense counsel also referenced inconsistencies and gaps in the testimony of Angel Hill and Derrick Dillard to argue there was insufficient evidence that McDaniel himself created all the “carnage.”

Next, McDaniel argues that the trial court repeatedly instructed the jury that it “must accept” the guilt phase jury’s finding that McDaniel had personally killed Anderson, which left no room for them to consider lingering doubt. Compounding the error of this instruction, he claims, was the prosecutor’s argument that McDaniel had personally killed Anderson, which relied heavily on an appeal to the findings of the prior jury. McDaniel’s reliance on People v. Gay (2008) 42 Cal.4th 1195, 1224, where the trial court instructed the jury that the defendant’s responsibility had been “conclusively proven and that there would be no evidence presented in this case to the contrary, ” is inapposite. In Gay, the error that the trial court’s statements compounded was the trial court’s limitation of evidence related to lingering doubt in the penalty phase. (Ibid.) As discussed above, ample evidence of this lingering doubt was introduced. Moreover, a statement that the jury “must” accept the guilt-phase findings is qualitatively different than a statement that the defendant’s guilt has been “conclusively proven” and that no evidence would be introduced to the contrary. (Ibid.) Nor did the prosecutor’s statements that “the verdicts have significance in this case, ladies and gentleman, ” preclude the jury from considering lingering doubt. These comments merely conveyed the fact that the prior jury found McDaniel to be the actual shooter.

(Streeter, supra, 54 Cal.4th at p. 265; Hamilton, supra, 45 Cal.4th at p. 948.)

 

 

 

F 763.3 (Factor a) Inst 9 (a-e) Lingering Doubt

*Add to CC 763:

Alternative a:

The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.

Alternative b:

It may be considered as a factor in mitigation if you have a lingering doubt as to the guilt of the defendant.

Alternative c:

Although proof of guilty beyond a reasonable doubt has been found, you may demand a greater degree of certainty for the imposition of the death penalty. The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.

Alternative d:

Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant intentionally killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.

Thus, if any individual juror has a lingering or residual doubt whether the defendant intentionally killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate.

Alternative e:

Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.

Thus, if any individual juror has a lingering or residual doubt about whether the defendant killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Lingering Doubt Instruction—It is clearly proper to rely on lingering doubt as a factor in mitigation. (People v. Thompson (1988) 45 C3d 86; but see Franklin v. Lynaugh (1988) 487 US 164 [101 LEd2d 155; 108 SCt 2320], in which the United States Supreme Court stated that the 8th Amendment does not mandate consideration of lingering doubt.)

However, while there is no requirement of an instruction on lingering doubt, it is a proper consideration for a jury. (People v. Brown (2003) 31 C4th 518; see also People v. Johnson (1992) 3 C4th 1183, 1251-52, concurring opinion of Mosk (with Kennard) [recognizing that the trial court is required to expressly instruct on “lingering doubt” when “there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard”]. (Johnson, 3 C4th at 1261, Mosk Conc. Op.) However, Justice Mosk also expressed the view that CJ 8.85 is “inclusive” of “lingering doubt.” (Id. at 1262, fn 4.)

See also FORECITE F 763.3 Inst 11.

Judicial Misconduct May Require Reversal Error

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 3, 2021, S092410) [pp. 138] the CSC concluded that judicial misconduct required reversal of the death penalty sentence because:

…[T]he trial judge’s conspicuous disdain for defense counsel and witnesses, and his repeated references to their improper or untrustworthy conduct, lent credence to the prosecution’s argument that defendant was manipulative and deceitful. These were the very characteristics the prosecution highlighted to justify the death penalty. The trial judge effectively threw “the weight of his judicial position” (Mahoney, supra, 201 Cal. at p. 627) behind the prosecution’s case and erroneously excluded relevant and potentially beneficial mitigating evidence, thus “undermin[ing] the defense theory of the case.” (Sturm, at p. 1243).

See also: F 17.30 – Jury Not To Take Cue From Judge

Justice Liu Identifies Defect in California Death Penalty Process

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 U.S. 466:

 

Our case law has held that the Apprendi rule does not disturb California’s death penalty scheme. Yet our decisions in this area consist of brief analyses that have largely addressed high court opinions one by one as they have appeared on the books. In my view, we have not fully grappled with the analytical underpinnings of the Apprendi rule and the totality of the high court’s 20-year line of decisions. (People v. McDaniel,  supra,____ Cal 5th at ____, concurring opn.)

 

The CSC has consistantly held that the true finding on a special circumstance at the guilt phase makes death the maximum penalty, so nothing that happens at the penalty phase can implicate Apprendi. (See, e.g., People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn. 14 [“[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense….”]; People v. Ochoa (2001) 26 Cal.4th 398, 454 [“[O]nce a jury has determined the existence of a special circumstance, the defendant stands convicted of an offense whose maximum penalty is death…. Accordingly, Apprendi does not restrict the sentencing of California defendants who have already been convicted of special circumstance murder.”].)

 

But this assertion, in the context of Apprendi, appears incorrect. Under our death penalty scheme, ‘the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant‘ [Citation; original emphasis] upon a conviction for first degree murder and special circumstance true finding – with nothing more – is life imprisonment without parole. A death verdict is authorized only when the penalty jury has unanimously determined that “the aggravating circumstances outweigh the mitigating circumstances’ [Citations] – which necessarily presupposes that the penalty jury has found at least one [PC 190.3] circumstance to be aggravating. … Our cases have not satisfactorily explained why this additional finding of at least one aggravating factor, which is a necessary precursor to the weighing determination and is thus required for the imposition of a death sentence, is not governed by the Apprendi rule. [Emphasis added.] (People v. McDaniel,  supra,____ Cal 5th at ____.)

 

 

Furthermore, the finding of the required special circumstance(s) for death eligibility does not necessarily constitute the finding of an aggravating circumstance:

 

Whereas states like Arizona and Florida statutorily enumerate a specific list of factors that, if found to exist by the jury, have been deemed per se aggravating, section 190.3 takes a different approach: It enumerates a combined list of potentially relevant factors and leaves it to the penalty phase jury to determine whether, in a given case, each individual factor is aggravating, mitigating, or irrelevant for sentencing selection. (See § 190.3 [the penalty jury “shall take into account any of the following factors if relevant” (italics added)].) Nothing in our death penalty scheme deems a special circumstance to be per se aggravating. Instead, section 190.3 leaves it to the penalty jury to determine whether ‘the existence of any special circumstances found to be true’ is an aggravating factor ‘relevant’ to the penalty determination. (§ 190.3, factor (a).) [Emphasis original.] (People v. McDaniel,  supra,____ Cal 5th at ____.)

 

Nor is this concern merely speculative.

 

The list of special circumstances in section 190.2 is broad and includes a number of circumstances, such as commission of murder during a burglary or robbery, that do not seem necessarily aggravating in every case. (People v. McDaniel,  supra,____ Cal 5th at ____.)

 

In sum, this issue “deserves careful and thorough reconsideration … in a case where it is more fully developed.” (Ibid.)

 

Sample Instruction: [Add at beginning of CC 763]:

 

Before even considering whether or not to impose the death penalty you must first unanimously find at least one aggravating factor listed below beyond a reasonable doubt. If any juror has a reasonable doubt that the prosecution proved at least one aggravating factor beyond a reasonable doubt you must return a verdict of life without parole.

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

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, attempt to use, or direct or implied
threat to use force or violence against a person. [The other violent
criminal activity alleged in this case will be described in these
instructions.]

(c) Whether or not the defendant has been convicted of any prior
felony other than the crime[s] of which (he/she) was convicted in
this case.

 

When the prosecution alleges that one or both of these factors is present it must prove the existence of the prior criminal activity and/or conviction(s) beyond a reasonable doubt. (See People v. Robertson (1982) 33 Cal.3d 21, 53–55; People v. Davenport (1985) 41 Cal.3d 247, 281.)

 

CC 764 and CC 765 purport to instruct on these requirements, inter alia, as follows:

CC 764 [para 4]:

Each of you must decide for yourself whether the People have proved that the defendant committed an alleged crime. You do not all need to agree whether an alleged crime has been proved. If any juror individually concludes that an alleged crime has been proved, that juror may give the evidence whatever weight he or she believes is appropriate. On the other hand, if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely. [Emphasis added.]

 

CC 765 [para 2]:

The People must prove (this/these) allegation[s] beyond a reasonable doubt. If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime. [Emphasis added.]

These instructions violate fundamental 8th Amendment principles because they imply that the prosecution’s failure to prove the allegation –which can itself be a mitigating factor — is not to be considered by the jury. (i.e., CC 764: “if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely” and CC 765: “If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime.”

In other words, the CC instructions erroneously fail to permit the jurors to consider the prosecution’s failure of proof as mitigating contrary to the established rule that the ‘absence of prior violent criminal activity and the absence of prior felony convictions are significant mitigating circumstances in a capital case, where the accused frequently has an extensive criminal past.’ [Citation]” (People v. Pearson (2013) 56 Cal.4th 393, 413; see also People v. Bacigalupo (1991) 1 C4th 103, 145-46 (Mosk, J. concurring [absence of other violent criminal activity and/or prior felony convictions “plainly is mitigating”]; People v. Bonillas (1989) 48 C3d 757, 793 [absence of premeditation and deliberation is mitigating].)

 

As shown above, the aggravating factors (B) and (C) are absent as a matter of law unless they have been proved beyond a reasonable doubt (See Robertson and Davenport, supra), It follows that regardless of whether or not the defendant has affirmatively proved the “absence” of the alleged criminal activity and/or felony conviction, the inability of the prosecution to meet its burden of proof is itself a mitigating factor. (See People v. Pearson, supra.)

In sum, the CC instructions violate the 8th amendment which requires that the jury be adequately instructed upon mitigating factors. (See Lockett v. Ohio (78) 438 US 586; see also Payne v. Tennessee (1991) 501 U.S. 808, 822 [“We have held that a State cannot preclude the sentencer from considering `any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death …].)

Thus. the CC language should be modified/supplemented to preclude consideration of unproved crimes and convictions as aggravation but at the same time to permit the prosecution’s failure of proof as mitigation. (See e.g, samples below.)

 

Sample Instruction 1:

 

Modify last sentence of CC 764, paragraph 4, to provide as follows [added language is italicized]:

 

On the other hand, if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely and not consider it as an aggravating factor. However, the absence of proof beyond a reasonable doubt that the defendant committed an alleged crime and/or any affirmative evidence that he did not commit the crime is a mitigating factor.

 

Sample Instruction 2:

 

Modify last sentence of CC 765, paragraph 2, to provide as follows [added language is italicized]:

 

If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime and not consider it as an aggravating factor. However, the absence of proof beyond a reasonable doubt that the defendant was convicted of (the/an) alleged crime is a mitigating factor.

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

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 written questions submitted by individual jurors. One juror asked: “Is it common for children to make up a story that abuse occurred, when, in fact it did not?” Over defendant’s objection, the expert responded: “No, that’s rare.”  Defense counsel repeated his objection, arguing that the question asked the expert to evaluate defendant’s guilt.

 

The reviewing court agreed with defense counsel. An expert may not give an opinion as to whether another witness is telling the truth, or whether the defendant is guilty, because the jury is generally well equipped to discern whether a witness is being truthful. As in People v. Julian (2019) 34 Cal.App.5th 878 and People v. Wilson (2019) 33 Cal.App.5th 559, the CSAAS expert’s statement here was inadmissible, as it amounted to vouching for the veracity of the alleged victim.

CALCRIM Revisions Effective October 1, 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

Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition
 

852A

 

Evidence of Uncharged Domestic Violence

 

1001

 

Rape or Spousal Rape in Concert

 

1015 & 1016

Oral Copulation by Force, Fear, or Threats Oral Copulation in Concert
 

1030 & 1031

Sodomy by Force, Fear, or Threats Sodomy in Concert
 

1045 & 1046

Sexual Penetration by Force, Fear, or Threats Sexual Penetration in Concert
 

1201 & 1215

 

Kidnapping

 

1243

 

Human Trafficking

 

1244

 

Causing Minor to Engage in Commercial Sex Act

 

1807

 

Elder Abuse

 

1930

 

Possession of Forged Documents

 

NEW 2045

 

False Personation

 

2100

Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury
 

2200

 

Reckless Driving

 

2656

 

Resisting Peace Officer, Public Officer, or EMT

 

NEW 3185

Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older
 

3411

 

Mistake of Law

 

3451

 

Present Mental Competence of Defendant

 

Below is CALCRIM’S overview of some of the proposed changes:

 

In-Custody Informant (CALCRIM No. 336)

A member alerted the committee about an unpublished opinion (People v. Aguilera (Mar. 20, 2020, F073866)) that discovered a potential ambiguity in this instruction. The court in Aguilera observed that the instruction failed to state corroboration is only required for incriminating testimony by an informant and not for exculpatory testimony. To clarify the instruction, the committee added “against the defendant” after the phrase “You may use the (statement/ [or] testimony of an in-custody informant” at the beginning of the list of requirements for such testimony. The committee also inserted the following sentence following those requirements: “This supporting evidence requirement does not apply where the testimony of an in-custody informant is offered for any purpose other than proving (guilt/ [or] a special circumstance/evidence in aggravation).”

 

Liability for Coconspirators’ Acts (CALCRIM No. 417)

This instruction explains to jurors that “[a] member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy.” A superior court judge pointed out that Senate Bill 1437 (Stats. 2018, ch. 1015), by eliminating natural and probable consequence liability for murder, could affect the application of this instruction in a murder case where the target offense was not murder. In response, the committee added a related issue to alert users of this potential complication. This same related issue was added to CALCRIM Nos. 402 and 403 in 2019.

 

 

Death Penalty: Mental Retardation (CALCRIM No. 775)

Assembly Bill 2512 (Stats. 2020, ch. 331) amended Penal Code section 1376, which addresses intellectual disability in death penalty proceedings. The legislation changed the third prong of the intellectual disability definition to include conditions that were observable “before the end of the developmental period” instead of the previous age 18 cutoff. The committee updated the instruction with this new statutory language and replaced the term “mental retardation” with “intellectual disability.” The committee also modified the authority section by removing an old link and by adding Hall v. Florida (2014) 572 U.S. 701, 722–723 [134 S.Ct. 1986, 188 L.Ed.2d

1007].

 

Evidence of Uncharged Domestic Violence (CALCRIM No. 852A)

Senate Bill 1141 (Stats. 2020, ch. 248) amended Family Code section 6320 to add coercive control as a basis for an ex parte order. While reviewing the instruction in relation to this statutory change, an attorney pointed out that the instruction failed to provide a complete definition of abuse as defined in Family Code section 6203. In response, the committee expanded the definition of abuse to include sexual assault and engaging in behavior that was or could be enjoined by Family Code section 6320. The committee also added domestic relationships specified in Family Code section 6211. During the comment period, a commenter noted that the Family Code contains separate definitions of cohabitants and that the relationships covered under Family Code section 6211 are broader than what the committee had initially included. As a result, the committee expanded the relationship descriptions and clarified the different statutory definitions.

 

Causing Minor to Engage in Commercial Sex Act (CALCRIM No. 1244)

In People v. Moses (2020) 10 Cal.5th 893, 912–913 [272 Cal.Rptr.3d 862, 477 P.3d 579], the California Supreme Court held that an actual minor victim is not required to violate Penal Code section 236.1(c). The Court also disapproved of People v. Shields (2018) 23 Cal.App.5th 1242 [233 Cal.Rptr.3d 701] “to the extent that it is inconsistent with this opinion.” 10 Cal.5th at 913, fn. 13. Accordingly, the committee expanded the third element of the instruction to include situations when the defendant believed that a person was under 18 years of age. The committee also removed the bench note related to the holding of People v. Shields and added a reference to Moses.

 

 

False Personation (proposed new CALCRIM No. 2045)

Previously, CALCRIM No. 2044 applied to offenses under both Penal Code section 529 and section 530. Last March, the Judicial Council approved revisions to CALCRIM No. 2044 that included simplifying the instruction so that it only covered Penal Code section 529 offenses. As a result, this new instruction is intended to separately cover Penal Code section 530 offenses. The new instruction largely tracks the deleted sections from the prior version of CALCRIM

No. 2044.

 

 

Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (CALCRIM No. 2100)

In People v. Stockman (2020) 56 Cal.App.5th 1093, 1095–1096 [270 Cal.Rptr.3d 812], the court noted that this instruction, unlike the lesser included instruction

CALCRIM No. 2110 (Driving Under the Influence Without Injury), fails to state that the “manner in which a person drives is not enough by itself to establish” that the person was “under the influence,” though it may be considered along with other factors. The court encouraged the Judicial Council to consider reconciling these two instructions so that jurors would have consistent direction. In response, the committee incorporated the manner of driving language from CALCRIM No. 2110 into this instruction.

 

Resisting Peace Officer, Public Officer, or EMT (CALCRIM No. 2656)

In People v. Mackreth (2020) 58 Cal.App.5th 317 [272 Cal.Rptr.3d 498], the court held that the mental state element of Penal Code section 148(a) does not require actual knowledge that the victim is a police officer. In reaching this conclusion, the court disagreed with In re A.L. (2019) 38 Cal.App.5th 15, 22 [250 Cal.Rptr.3d 572], which held that the defendant must have actual knowledge he or she is resisting an officer in the performance of duty. The committee added a bench note to highlight this split in authority and to alert trial courts to modify the instruction if the court agrees with the holding of A.L. instead of Mackreth.

 

Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older (proposed new CALCRIM No. 3185) with related revisions to CALCRIM Nos. 1001, 1015, 1016, 1030, 1031, 1045, and 1046

A committee member noted that CALCRIM No. 1045 did not include sentence enhancements that apply when force or fear is used against a minor victim who is either younger than 14 years of age or at least 14 years of age. Because multiple sex offenses contain similarly worded sentence enhancements, the committee decided to create a new instruction that could be used in conjunction with several instructions. This new instruction contains alternatives that correspond to the different statutory language describing the various Penal Code offenses. The committee also added a reference to this new instruction in the bench notes of the related instructions.

 

Finally, in CALCRIM No. 1045, the committee added People v. Duarte Lara (2020) 49 Cal.App.5th 332 [262 Cal.Rptr.3d 774] [holding that the statutory presumption that a minor over 14 is incapable of legal consent does not apply to a violation of Penal Code section 289(a)(1)(C)] to the bench notes.

 

Mistake of Law As a Defense (CALCRIM No. 3411)

People v. Koenig (2021) 58 Cal.App.5th 771, 809 [272 Cal.Rptr.3d 732] involved a prosecution for securities fraud. During the trial, the defendant presented evidence that he had relied on legal advice that he was not required to disclose his prior mail fraud convictions when he offered to sell a security. The court agreed that “a mistake of law instruction was warranted insofar as evidence gave rise to a good faith belief that the prior convictions need not be disclosed.” The committee added this case to the bench note that discusses the limited application of this defense.

 

Present Mental Competence of Defendant (CALCRIM No. 3451)

A criminal defense attorney requested that the committee change element 2 of the competence definition to include that the accused can “consult with counsel and assist in preparing his or her defense” as outlined in Dusky v. United States (1960) 362 U.S. 402, 402 [80 S.Ct. 788, 4 L.Ed.2d 824]. In addition to Dusky, the committee reviewed People v. Jablonski (2006) 37 Cal.4th 774, 808 [38 Cal.Rptr.3d 98, 126 P.3d 938], which held that the competency standard outlined in Penal Code section 1367 comported with federal due process standards. Because the competency standard in this instruction is based on Penal Code section 1367, the committee concluded that the language did not need to be changed but instead added citations to Dusky and Jablonski to the authority section. The committee also replaced the term “mental retardation” with “intellectual disability.”

Mistake of Law as Defense Theory to Specific Intent Crime

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 the defendant’s theory of the case. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 774-780; see also, People v. Koenig (2020) 58 Cal.App.5th 771, 809 [272 Cal.Rptr.3d 732] [instruction appropriate where defendant relied on advice of counsel to establish mistake of law related to omission of material fact in sale of security]; see also F 3407 Inst 3 Mistake Of Law May Negate Specific Intent.)

 

If the defendant is charged with a general intent crime and raises a mistake of law defense, CC 3407 applies. If both general and specific intent crimes are charged, use the bracketed first paragraph of CC 3411 may be used.

 

For more issues related to mistake of law see:


F 3407 Inst 1 Delete Mistake Of Law Instruction As Duplicative And Argumentative
F 3407 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 3407 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3407 Inst 5 Pinpoint Instruction On Mistake Of Law
F 3407 Inst 6 (a-c) Vagueness Of Law As Relevant To Mistake Of Law

Improper Prosecutorial Statements That It Is Illegal for Jurors to Refuse to Deliberate and that Jurors Must Report any Such Refusal

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 prosecutor’s statements were erroneous based on People v. Engelman (2002) 28 Cal.4th 436, which disapproved CJ 17.41.1 [jury has obligation to report any juror’s refusal to deliberate or intent to disregard the law].)

 

However, it was unnecessary to decide whether the prosecutor’s comments rose to the level of misconduct, because trial counsel’s failure to object was not prejudicial. The trial court correctly instructed the jurors that they had a duty to talk, deliberate, and follow the law, and there was no evidence of juror conflict, a refusal to deliberate, or an intent to disregard the law.

Porch Is Not Part of the Residence for the Presumption of Fear from Entry

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 against another who unlawfully and forcibly enters the residence.

 

People v. Wilson (2021) ____Cal. App. 5th ____ [C083772; 8/11/21; C/A 3rd] considered whether PC 198.5 applies to a killing which occurred on a porch outside the actual residence.  The Court concluded that the “stand your ground” law does not aplply to porches outside the residence: “a resident’s use of force must be within the residence, and thus an unlawful and forcible entry into a residence is a predicate to application of the presumption. [Citaitions.]” (Id. at ___.) “ ‘A reasonable person would not expect protection from unauthorized intrusion onto this kind of porch. Quite the contrary. Social convention dictates that anyone wishing to summon the occupant’s presence or gain entry into the home must first enter the porch.’ [Citation].” (Ibid.)