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Consciousness of Guilt: Using Evidence Code 353 to Get a Limited Admissibility Instruction

–Consciousness of Guilt and Mens Rea.

Consciousness of guilt evidence is widely accepted as admissible to prove that the defendant was …. consciousness that he has committed some wrongdoing. (People v. Bolin (1998) 18 Cal.4th 297, 327; see also e.g, CC 372 [“awareness of guilt”].)

However, it is also accepted that the defendant’s awareness of some wrongdoing does not necessarily constitute “consciousness of having committed the specific offenses charged.” People v. Thornton (2007) 41 Cal.4th 391, 438-39 [approving the following instruction as “an accurate statement of the law” — “As used in these instructions, consciousness of guilt means consciousness of some wrongdoing, and does not necessarily refer to consciousness of having committed the specific offenses charged.”].)

This is so because — as a matter of reason and commonsense* — defendants do not “tend to flee [or dispose of evidence] only when they have committed certain crimes and not others.” (People v. Wear (Feb. 4, 2020, A152732) ___ Cal.App.1st ___ [pp. 27-28].)

*The propriety of permissive evidentiary presumptions should be evaluated based on “reason and commonsense….” (See People v. Mendoza (2000)24 cal 4th 130, 179; see also People v. Hernández (2007) 151 Cal.App.4th 1154, 1158.

For example, evasive conduct by a defendant following the commission of a homicide does not “support the conclusion that [the defendant] committed premeditated and deliberate murder as opposed to second degree murder or any lesser offense.” (Ibid., see also People v. Millbrook (2014) 222 Cal.App.4th 1122, 1148 [“We do not buy the argument that Millbrook’s flight demonstrates an awareness of guilt of attempted murder but not of attempted voluntary manslaughter.”]; People v. Perez (1992) 2 Cal.4th 1117, 1143, Dis. Opn. [persons who commit second degree murder are no less likely to adopt evasive tactics than those who premeditated or deliberated. “The penalty is unpleasant in both cases.”].)

Thus, consciousness of guilt evidence is not relevant to the defendant’s mental state or intent unless there is a rational connection between the evasive conduct and the alleged intent or mental state. (See e.g., People v. Rundle (2008) 43 Cal.4th 76, 152-54 [“trial court’s modification of the flight instruction correctly stated the law — that the jury could not consider defendant’s flight as evidence of his state of mind when the killings occurred, unless it found “defendant’s conduct in leaving actually reflected such intent or mental state at the time of the crimes.”]; see also People v. Anderson (1968) 70 Cal.2d 15, 32 [While consciousness of guilt evidence may possibly bear on defendant’s state of mind after the killing, it is irrelevant to ascertaining defendant’s state of mind immediately prior to, or during, the killing. Evasive conduct shows fear: it cannot support the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation.”]; cf., People v. Anderson (1985) 38 Cal.3d 58, 62 [fact that defendant did not flee immediately after the shooting but remained in the house to search for money and something to eat [may have been] … relevant to his state of mind before the event ….”]; People v. Han (2000) 78 Cal.App.4th 797, 808 [flight was relevant as to whether defendant committed an infraction or felony because “many people would run from a felony, but few from an infraction.”])

–Evidence Code Section 355 May Require Limitation Of Consciousness Of Guilt Evidence When Offered To Prove Both The Act And Mental Elements Of The Charges.

Consciousness of guilt is a form of “dual-purpose” evidence because it may be relevant to prove (1) awareness of wrongdoing and/or (2) the defendant’s mental state or intent when the wrongdoing was committed.  (Compare Anderson, supra,  [no basis for deciding degree] with Perez {“…the conduct of defendant after the stabbing, such as the search of dresser drawers, jewelry boxes, kitchen drawers and the changing of a Band-Aid on his bloody hand, would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing. Here, defendant did not immediately flee the scene. Again, while not sufficient in themselves to establish premeditation and deliberation, these are facts which a jury could reasonably consider in relation to the manner of killing.”])

Thus, consciousness of guilt evidence is subject to EC 355 because it “may be admissible for one purpose or on one theory even though it is inadmissible for other purposes or on other theories.” (People v. Reyes (1976) 62 Cal.App.3d 53, 61-62.)

 

 

 

Accordingly, before consciousness of guilt evidence is admitted the defense should have the right to a preliminary factual finding as to whether the evidence should be admitted and, if so, whether or not the jury’s consideration of the evidence should be limited ” to protect against the jurors’ possible misuse of the evidence through a limiting instruction.” (People v. Holloway (2004) 33 Cal.4th 96, 133-34.)

 

Evidence Code section 355 states that “[w]hen evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (People v. Nguyen (2015) 61 Cal.4th 1015, 1042; People v. Dennis (1998) 17 Cal.4th 468, 533 [“[S]ection 355 requires the court to give appropriate limiting instructions if properly requested.”].)

(The EC 355 ruling “may be made at any time before the matter is submitted to the trier of fact. Certainly, it is common in jury trials for admonitions concerning limited admissibility to be requested and given when the evidence is introduced, at the close of trial, or both.” (Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1061-62.)

In sum, if the evidence provides a rational basis for the jurors to consider the evidence as to the defendant’s mental state (see e.g., Perez, Rundle) then the judge may allow the jury to consider the evidence for that purpose. (However, it could also be excluded under EC 352.) On the other hand, if the evidence of post crime behavior is a traditional form of consciousness of guilt such as flight or false statements there may well be no rational basis to admit the evidence to prove the mental state or intent elements of the offense. In fact situations such as Anderson, Wear, and Millbrook — where the evidence does not have a commonsense connection to the mens rea of the charges — limited admissibility and a clear limiting instruction is required by EC 353, upon request.

The CSC Has Not Foreclosed Limitation Of Consciousness Of Guilt Evidence Per EC 355

The CSC has not precluded trial courts from limiting the admissibility of consciousness of guilt pursuant to EC 355.  It is true that CSC cases have rejected claims that the standard consciousness “direct or compel” the jury to draw “impermissible inferences” regarding the defendant’s mental state at the time of the offense. However, most of those decisions are based on the CSC’s conclusion that the standard consciousness of guilt instructions “do not address the defendant’s mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard hereto.” (People v. Crandell (1988) 46 Cal.3d 833, 871; see also People v. Jackson (1996) 13 Cal.4th 1164, 1223-24; People v. Beck (Dec. 2, 2019, S029843) [pp. 154-56].)

In so doing, the Court has never disagreed with the basic premise expressed in cases such as Anderson, Millbrook and Wear that there is no rational basis upon which to find that the defendant guilty of a greater as opposed to lesser offense based on traditional consciousness of guilt evidence such as flight, destruction of evidence, false statements, etc.

Nor has the Court foreclosed the use of EC 353 to limit the admissibility of consciousness of guilt evidence and to so instruct the jury in situations where the evasive conduct is not rationally probative of the defendant’s mental state.

In sum, notwithstanding the CSC’s conclusion that the standard instructions do not “compel or direct” the jurors to draw impermissible inferences, trial judges are still required to protect against “misuse” of limited admissibility consciousness of guilt evidence under EC 355 principles.

Sample Limiting Instruction No. 1

You may not consider the defendant’s flight as evidence of his state of mind when the killings occurred, unless you find that the defendant’s conduct in leaving actually reflected such intent or mental state at the time of the crimes.

People v. Rundle (2008) 43 Cal.4th 76, 152-54 [Similar instructional language]

Sample limiting instruction No. 2

As used in these instructions, consciousness of guilt means consciousness of some wrongdoing, and does not necessarily refer to consciousness of having committed the specific offenses charged.

[People v. Thornton (2007) 41 Cal.4th 391, 438-39 [This language is an “accurate statement of the law.”]

 

 

Sample Instruction No. 3

*Add to CC 371(A):

The defendant’s _______________ <insert alleged act of suppression e.g., destruction of evidence>, if any, is only relevant as to the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had done something wrong. Such evidence may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses the defendant committed].

F 371(A-2) Inst 2 Suppression Of Evidence: Inapplicable To Nature Or Degree Of Guilt

Sample Instruction No. 4

The prosecution contends (and the defendant denies) that the defendant _____________ [insert conduct e.g., fled, made false statements, etc.]. You may consider evidence of _______________ (insert conduct), together with all other facts and circumstances in this case, in deciding whether the combined circumstances show a consciousness of guilt. However, proof of this circumstance is not sufficient, by itself, to establish the defendant’s guilt. Further, this circumstance has no bearing on the question of whether defendant acted with premeditation and deliberation. Therefore, you must not consider this circumstance as evidence of premeditation or deliberation.

[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS – CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]

 

Sample Instruction No. 5

 

This circumstance ____________ (insert conduct e.g., flight, false statement, etc.) has no bearing on the question of whether defendant acted with ___________________ (insert applicable mental state e.g., premeditation and deliberation). Therefore, you must not consider it as evidence of _________________ (mental state).

[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS – CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]

 

Sample instruction No. 6

 

The defendant’s consciousness of guilt, if any, is relevant upon the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had committed a crime. Consciousness of guilt may not be considered [in deciding the degree of defendant’s guilt] [or] [in deciding which of the charged offenses the defendant committed].

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Prosecution’s Constitutional Challenge to SB 1437 Rejected and CSC Review Denied

SB 1437 bars liability for felony murder where the defendant wasn’t the actual killer, didn’t intend to kill, and wasn’t a major participant in the underlying felony. In Gooden, the C/A People v. Superior Court (Gooden); 42 CA5th 270 rejected the DA’s argument that SB 1437 unconstitutionally amended Proposition 7 or Proposition 115. Furthermore, People v. Lamoureux; 42 CA5th 241 rejected the DA’s arguments that SB 1437 violates separation of powers or Marsy’s Law.

The CSC has denied review in both cases.

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Selected CALCRIM Revisions Which Are Still Pending Due to Cancellation of The March 2020 Judicial Council Meeting

The March 24, 2020 meeting at which the March 2020 CALCRIM revisions were to be approved was cancelled due to the COVID-19 pandemic. See https://newsroom.courts.ca.gov/news/releases-20200323

 

The following revisions (highlighted in red) are some of the changes which were to be considered — and presumably approved — at the March meeting:

 

Personal pronouns

Many instructions include an option to insert the personal pronouns “he/she,” “his/her,” or “him/her.” The committee does not intend these options to be limiting. It is the policy of the State of California that nonbinary people are entitled to full legal recognition and equal treatment under the law. In accordance with this policy, attorneys and courts should ensure that they are using preferred personal pronouns.

 

 

 

101 para 2

During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists. You may only say that you are on a jury and the anticipated length of the trial, and you may inform others of scheduling and emergency contact information. Do not share any information about the case by any means of communication, including in writing, by email, by telephone, on the Internet, social media, Internet chat rooms, and blogsor by any other means of communication. You must not talk about these things with other jurors either, until you begin deliberating.

 

para 5

 

Do not use the Internet (, a dictionary/[, or              <insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not investigate the facts or the law or do any research regarding this case or any of its participants.

 

 

para 10; 200, para 3

 

You must not let bias, sympathy, prejudice, or public opinion influence your assessment of the evidence or your decision. Many people have assumptions and biases about or stereotypes of other people and may be unaware of them. You must not be biased in favor of or against any party, witness, attorney, defendant[s], or alleged victim because of his or her disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, [or] age (./,) [or socioeconomic status] (./,) [or

                            <insert any other impermissible form of bias>.]

You must reach your verdict without any consideration of punishment.

334, Benchnotes re: para beginning with “The burden is on the defendant…”

Give the bracketed sentence that begins with “The burden is on the defendant” unless acting with an accomplice is an element of the charged crime. (People v. Martinez (2019) 34 Cal.App.5th 721, 723 [246 Cal.Rptr.3d 442].) Martinez only involved charges where acting as an accomplice was an element.

361. Failure to Explain or Deny Adverse TestimonyEvidence

Bench notes

 

There is a split in authority over the application of People v. Saddler (1979) 24 Cal.3d 671, 682–683 [156 Cal.Rptr. 871, 597 P.2d 130] [instruction erroneously given because there was no evidence that defendant failed to deny or explain incriminating evidence] and whether this instruction should be given when a testifying defendant fails to explain or deny incriminating evidence in the absence of a question. (Compare People v. Grandberry (2019) 35 Cal.App.5th 599, 609 [247 Cal.Rptr.3d 258] [approving use of the instruction “when a testifying defendant has failed to explain or deny matters within the scope of relevant cross- examination, not simply those matters that were asked of the defendant on cross- examination”] with People v. Roehler (1985) 167 Cal.App.3d 353, 392 [213 Cal.Rptr. 353] [“If a defendant has not been asked an appropriate question calling for either an explanation or denial, the instruction cannot be given, as a matter of law”] and People v. Vega (2015) 236 Cal.App.4th 484, 497 [186 Cal.Rptr.3d 671] [noting restrictions for when the instruction may be given and quoting Roehler].)

 

If the court follows Grandberry, the trial court must ascertain as a matter of law: (1) if the matter was within the scope of relevant cross-examination; (2) if the defendant knew the facts necessary to explain or deny incriminating evidence or if

 

 

377. Presence of Support Person/Dog/Dog Handler (Pen. Code, §§ 868.4, 868.5)

                        _ <insert name of witness> (will have/has/had) a (person/dog) present during (his/her) testimony. Do not consider the presence of the support (person’s/dog’s [and dog handler]) presence who (is/was) with the witness for any purpose or allow it to distract you.

New March 2018; Revised March 2020

 

BENCH NOTES

 

Instructional Duty

The court may give this instruction on request. If instructing on support persons, this instruction only applies to prosecution witnesses.

 

AUTHORITY

 

  • ElementsPen. Code, §§ 868.4, 5.

 

378–399. Reserved for Future Use

 

 

507 Justifiable Homicide: By Public Peace Officer

 

 

The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill/killed) someone while (acting as a public peace officer/obeying a public peace officer’s command for aid and assistance). Such (A/Ana/an) [attempted] killing is justified, and therefore not unlawful, if:

 

  1. The defendant was (a public peace officer/obeying a public peace officer’s command for aid and assistance);

 

AND

 

  1. The [attempted] killing was committed while the defendant either: (taking back into custody a convicted felon [or felons] who had escaped from prison or confinement[,]/ arresting a person [or persons] charged with a felony who (was/were) resisting arrest or fleeing from justice[,]/ overcoming actual resistance to some legal process[,]/ [or] while performing any [other] legal duty);

 

 

  1. Reasonably believed, based on the totality of the circumstances, that the force was necessary to defend against an imminent threat of death or serious bodily injury to the defendant or another person;

 

OR

 

  1. Reasonably believed, based on the totality of the circumstances, that:

 

B1.                              <insert name of fleeing felon> was fleeing;

 

B2. The force was necessary to arrest or detain                                                                              <insert name of fleeing felon > for the crime of                      <insert name of felony >;

 

B3. The commission of the crime of         _ <insert name of felony> created a risk of or resulted in death or serious bodily injury to another person;

 

AND

 

B4.                       <insert name of fleeing felon > would cause death or serious bodily injury to another person unless immediately arrested or detained.

 

  1. The [attempted] killing was necessary to accomplish (one of those/that) lawful purpose[s];

 

AND

 

  1. The defendant had probable cause to believe that ( _

<insert name of decedent> posed a threat of death or great bodily injury, either to the defendant or to others/[or] that _

<insert name of decedent> had committed (_         _<insert forcible and atrocious crime>/            _<insert crime decedent was suspected of committing, e.g., burglary>), and that crime threatened the defendant or others with death or great bodily injury)]. <See Bench Note discussing this element.>

 

A person has probable cause to believe that someone poses a threat of death or great bodily injury when facts known to the person would persuade someone of reasonable caution that the other person is going to cause death or great bodily injury to another.

[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]

 

[A threat of death or serious bodily injury is imminent when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or to another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.]

 

[Totality of the circumstances means all facts known to the defendant at the time, including the conduct of the defendant and              <insert name of decedent> leading up to the use of deadly force.]

 

 

[In considering the totality of circumstances, you may consider whether: [●  A reasonable officer would have believed that                                                                                             _<insert name of fleeing felon> posed an imminent threat of death or serious

bodily injury to the defendant or to another person(;/.)]

[● Prior to the use of force, the defendant [identified] [or] [attempted to identify] him or herself as a peace officer and [warned] [or] [attempted to warn] that deadly force may be used(;/.)]

[● Prior to the use of force, the defendant had objectively reasonable grounds to believe the person was aware that the defendant was a peace officer and that deadly force may be used(;/.)]

[● [The defendant was able, under the circumstances, to [identify] [or] [attempt to identify] him or herself as a peace officer] [and] [to warn] [or] [attempt to warn] that deadly force may be used.]]

 

[A peace officer who makes or attempts to make an arrest need not retreat or stop because the person being arrested is resisting or threatening to resist. A peace officer does not lose (his/her) right to self-defense by using objectively reasonable force to arrest or to prevent escape or to overcome resistance.] [An officer or employee of       <insert name of state or local government agency that employs public officer> is a public officer.]

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

[A person who is employed as a police officer by             <insert name of agency that employs police officer> is a peace officer.]

 

[A person employed by                <insert name of agency that employs peace officer, e.g., “the Department of Fish and Wildlife”> is a peace officer if

<insert description of facts necessary to make employee a peace officer, e.g, “designated by the director of the agency as a peace officer”>.]

 

 

 

 

The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter).

New January 2006; Revised April 2011, February 2012, August 2012, March

2020

 

BENCH NOTES

 

Instructional Duty

 

The court has a sua sponte duty to instruct on justifiable homicide when “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-defense].)

 

Penal Code sections 196 and 835a, as amended by Statutes 2019, ch.170 (A.B. 392), became effective on January 1, 2020. If the defendant’s act occurred before this date, the court should give the prior version of this instruction.

 

In element 2, select the phrase appropriate for the facts of the case.

 

It is unclear whether the officer must always have probable cause to believe that the victim poses a threat of future harm or if it is sufficient if the officer has probable cause to believe that the victim committed a forcible and atrocious crime. In Tennessee v. Garner (1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1],

the Supreme Court held that, under the Fourth Amendment, deadly force may not be used to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. “Garner necessarily limits the scope of justification for homicide under section 197, subdivision 4, and other similar statutes from the date of that decision.” (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214 Cal.Rptr.

873].) In a footnote, Garner, supra, 471 U.S. 1, 16, fn. 15, noted that California law permits a killing in either situation, that is, when the suspect has committed an atrocious crime or when the suspect poses a threat of future harm. (See also Long Beach Police Officers Assn v. City of Long Beach (1976) 61 Cal.App.3d 364, 371- 375 [132 Cal.Rptr. 348] [also stating the rule as “either” but quoting police regulations, which require that the officer always believe there is a risk of future harm.]) The committee has provided both options, but see People v. Ceballos (1974) 12 Cal.3d 470, 478-479 [116 Cal.Rptr. 233, 526 P.2d 241]. The court

should review relevant case law before giving the bracketed language.

 

As with a peace officer, tThe jury must determine whether the defendant was a public peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury in the appropriate definition of “public peace officer” from the statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are public peace officers”). (Ibid.) However, the court may not instruct the jury that the defendant was a public peace officer as a matter of law (e.g., “Officer Reed was a public peace officer”). (Ibid.) If the defendant is a police officer, give the bracketed sentence that begins with “A person employed as a police officer.” If the

 

defendant is another type of peace officer, give the bracketed sentence that begins with “A person employed by.”

 

Related Instructions

CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Officer).

CALCRIM No. 509, Justifiable Homicide: Non-Peace Officer Preserving the Peace.

 

AUTHORITY

 

  • Justifiable Homicide by Public Peace Pen. Code, §§ 196, 199, 835a;

Tennessee v. Garner (1985) 471 U.S. 1 [105 S.Ct. 1694, 85 L.Ed.2d 1].

  • Burden of Proof.Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154−1155 [10 Cal.Rptr.2d 217]; People v. Banks (1976) 67 App.3d 379, 383–384 [137 Cal.Rptr. 652].
  • Public Peace Officer Defined.See Code, § 830 et seq.§ 831(a) [custodial officer], 831.4 [sheriff’s or police security officer], 831.5 [custodial officer], 831.6 [transportation officer], 3089 [county parole officer]; In re Frederick B. (1987) 192 Cal.App.3d 79, 89–90 [237 Cal.Rptr. 338], disapproved on other grounds in In re Randy G. (2001) 26 Cal.4th 556, 567 fn. 2 [110 Cal.Rptr.2d 516, 28 P.3d 239] [“public officers” is broader category than “peace officers”]; see also Pen. Code, § 836.5(a) [authority to arrest without warrant].
  • Felony Must Pose Threat of Death or Great Bodily Injury.Kortum v. Alkire (1977) 69 Cal.App.3d 325, 332-333 [138 Cal.Rptr. 26].Serious Bodily Injury Defined.Pen. Code, § 243(f)(4); People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].

 

RELATED ISSUES

 

Killing Committed in Obedience to Judgment

A homicide is also justifiable when committed by a public officer “in obedience to any judgment of a competent court.” (Pen. Code, § 196, subd. 1.) There are no reported cases construing this subdivision. This provision appears to apply exclusively to lawful executions.

 

SECONDARY SOURCES

 

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 92, 95, 275.

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March 2020 CALCRIM Revision Meeting Cancelled Due to the COVID-19 Pandemic

The meeting at which the March 2020 CALCRIM revisions were to be approved has been cancelled due to the COVID-19 pandemic. The judicial council released the following statement regarding the cancellation:

In her role as chair of the Judicial Council of California, Chief Justice Tani G. Cantil-Sakauye has cancelled the Judicial Council meeting scheduled for March 24.

“Providing justice has always been understood to be indispensable to government and democracy, and the Governor’s stay-home executive order acknowledges the essential service of the court system,” the Chief Justice said.

“However, all our judicial council members serve as leaders in their local courts—as judicial officers, court executives, or attorneys. I do not want to take them away from their very important court roles. Any pressing business of the Judicial Council can be postponed or accomplished by circulating order via email. Judicial Council members should attend to essential work in their trial and appellate courts.” (See California Rule of Court 10.5)

In addition to cancelling the upcoming meeting, the Chief Justice asked the Judicial Council’s rules committee to review and recommend changes to court rules so the court system can respond quickly and efficiently to ongoing needs in the wake of the COVID-19 pandemic.

Later this week a selected preview of revisions which were to be considered at the meeting will be posted.

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CALCRIM Instruction on Adoptive Admissions Not Required Sua Sponte

The trial court was not under a sua sponte duty to give the jury adoptive admission instructions (CALJIC 2.71.5 or CALCRIM 357).  The jury was given the standard instruction on admissions in general (CALJIC 2.71; see also CALCRIM 358).  When paired with court’s oral admonitions that the recorded statement was “only to be considered” with respect to defendant’s “state of mind or to the extent that he adopted these things,” the standard written instruction given at trial was sufficient for the jury to understand its role.

 

People v. Mendez (Julian) (2019) 7 Cal.5th 680 (July 1, 2019)

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Multiplicity: Threats, Assault And Other Specific Examples

Multiplicity deals with the fragmentation of what is legally a single offense into separate multiple offenses. This doctrine is legislatively set forth in pc 954, which “‘authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.'” (People v. Vidana (2016) 1 Cal.5th 632, 650.) The CSC Has Advised That Whether Statutory Provisions “Define Different Offenses Or Merely Describe Different Ways Of Committing The Same Offense Properly Turns On The Legislature’s Intent In Enacting These Provisions, And If The Legislature Meant To Define Only One Offense, We May Not Turn It Into Two.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537.

People V. Cota (Jan. 27, 2020, G056850) ___ Cal.App.4th ___ [Pp. 4-5]

Two recent examples of the multiplicity doctrine are the following:

 

Criminal Threats: People v. Roles; C086645; 1/8/20; C/A 3rd

During a divorce proceeding with a child custody issue, the court appointed counsel for the minors. The defendant called the minor’s lawyer and left 9 separate threatening messages. Each of these would qualify as a criminal threat under pc 422. The defendant was convicted of 9 counts.

 

The reviewing court reversed because the victim heard all 9 voice mails in one sitting and thus the required sustained fear happened all at once.

 

Moreover, the victim played the voice mails for the wife’s lawyer, and that became count 10. That that count was also reversed because the prosecution failed to establish that the defendant intended that the second lawyer would hear the threats.

 

Assault: People v. Cota (Jan. 27, 2020, G056850) ___ Cal.App.4th ___ [Pp. 4-5]

The defendant hit the victim with a chair, breaking his wrist. The DA sought and obtained convictions for both assault with a deadly weapon (PC 245(a)(1)), and assault with force likely to cause great bodily injury (PC 245(a)(4)). The defense contended that these are just two alternative descriptions of the same act. The appellate court agrees reversed because the convictions were different statements of the same offense of aggravated assault, and that both were based on the same conduct.

 

Other examples in Forecite include the following:

F 3515.2 Note 1 Multiple Counts: Multiple Takings
F 3515.2 Note 2 Multiple Counts: Multiple Possessions
F 3515.2 Note 3 Multiple Counts: Multiple Victims
F 3515.2 Note 4 Multiple Counts: Multiple Entries
F 3515.2 Note 5 Multiple Counts: Receipt Of Multiple Items
F 3515.2 Note 6 Failure To Register (PC 290): Single Prosecution Required For PC 290 Violations Based On Single Act Of Relocating
F 3515.2 Note 7 Aggregation Of Multiple Misdemeanor Violations
F 3515.2 Note 8 Multiple Counts: Sale And Transportation
F 3515.2 Note 9 Multiple Counts: Kidnapping For Robbery And Kidnapping For Carjacking (PC 209.5; PC 209)
F 3515.2 Note 10 Multiple Counts: Arson—Individual Apartments Damaged By Fire Are Not Separate Structures Per PC 451.5(A)(3)
F 3515.2 Note 11 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase
F 3515.2 Note 12 Conviction Permissible For Both Attempted Manslaughter And Assault For Same Act
F 3515.2 Note 13 Multiple Counts: Continuous Sexual Abuse And Individual Sexual Offenses—PC 288.5 Precludes Convictions On Both Continuous Sexual Abuse Charge And Individual Sexual Offenses
F 3515.2 Note 14 Multiple Counts: Forgery
F 3515.2 Note 15 Multiple Counts: Violation Of Child Custody Order (PC 278.5)
F 3515.2 Note 16 Multiple Counts: Medi-Cal Fraud (WI 14107)
F 3515.2 Note 17 Federal Internet Pornography Statute Held Not To Violate The First Amendment
F 3515.2 Note 18 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(B))
F 351.25 Note 19 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct

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Aiding and abetting: Natural and probable consequences–Does Chui Doctrine apply to Lying in wait?

People v. Gastelum (Feb. 25, 2020, D075368) ___ Cal.App.4th ___ [pp. 3] held that People v. Chiu (2014) 59 Cal.4th 155 does not apply to first degree murder based on lying in wait. The court observed that because Chiu did not consider the first degree lying-in-wait murder at issue here, and Gastelum did not provide a persuasive argument why Chiu should be extended to lying in wait murder—particularly where the defendant and perpetrator are equally culpable, having committed all the same actions that gave rise to the lying-in-wait murder.

 

***Alert: this case is not yet final.

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Grand Theft Statute (PC 487) Requires Application of Proposition 47

In People v. Wehr (2019) 41 Cal.App.5th 123, 126-27 the defendant argued that his offense for receiving a stolen vehicle was eligible for misdemeanor treatment under PC 496 if the value of the stolen vehicle did not exceed $950. People v. Page (2017) 3 Cal.5th 1175 held that the general petty theft statute controls if the stolen vehicle is worth $950 or less. (Id. at pp. 1180, 1187.)

Therefore, “after the passage of Proposition 47, receipt of a stolen vehicle is eligible for misdemeanor treatment under section 496, assuming that the vehicle is worth $950 or less.” (Wehr, 41 Cal.App.5th at 127.)

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Two Issues Regarding Accomplice Liability for Attempted Murder Currently Before the CSC

In 2018, the Legislature and the Governor signed into law Senate Bill No. 1437, (Penal Code which restricted the circumstances under which a person can be liable for felony murder and abrogated the natural and probable consequences doctrine as applied to murder. (Stats. 2018, ch. 1015.) It also established a procedure permitting qualified persons with murder convictions to petition to vacate their convictions and obtain resentencing if they were previously convicted of felony murder or murder under the natural and probable consequences doctrine. (Penal Code Section 1170.95.)

The CSC has granted review in People v. Lopez, S258175. (B271516; 38 Cal.App.5th 1087; Los Angeles County Superior Court; BA404685 to consider the following issues: (1) Does SB 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine? (2) To convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155

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Reviewing Court Reverses Conviction and Enhancement Due to CALCRIM’s Erroneous Definition of Great Bodily Injury — Over 40 CC Instructions Potentially Affected

People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 concluded that the CALCRIM definition of “great bodily harm” [GBI] in CC 875 and CC 3160 erroneously allowed the prosecutor to argue and the jury to find GBI based on either greater than minor harm or greater than moderate harm. This “alternate theory error” resulted in reversal of both the underlying conviction and the GBI enhancement

PC 12022.7 was originally enacted in 1976 ….” (People v. Escobar (1992) 3 Cal4th 740, 746.) The Legislature defined great bodily injury as a “significant or substantial physical injury” as provided in the CALJIC instruction.’ ” (Id. at pp. 747-748.) At nearly the same time, the CSC separately acknowledged great bodily injury “has been defined as meaning significant or substantial bodily injury or damage as distinguished from trivial or insignificant injury or moderate harm” in People v. Miller (1977) 18 Cal3d 873, 883.)

The Supreme Court again confronted the meaning of “great bodily injury” in People v. Cross (2008) 45 Cal.4th 58. There, the court cited Miller, supra, 18 Cal.3d 873, with approval for its recognition that great bodily injury is more than moderate harm. (Cross, supra, at p. 64.) As illustrated, both the Legislature and judiciary agree that great bodily injury is more than both minor and moderate harms.

“”Effective January 1, 2006, the California Judicial Council withdrew its endorsement of the CALJIC instructions and adopted the CALCRIM instructions.” (People v. Reyes (2008)160 Cal.App.4th 246, 251.) The CALCRIM instructions now define great bodily injury as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (See CC 875, 3160.) This definition differs from the previous CALJIC definition on which the Legislature based the statute because under the plain language of the instruction, the jury can find great bodily injury based on either greater than minor harm or greater than moderate harm. (People v. Medellin, supra, (Feb. 20, 2020, F076022) *** Cal.App.5th *** [pp. 12].)

“The instruction’s ‘use of the word “or” … indicates an intention to use it disjunctively so as to designate alternative or separate categories.’ ” (People v. Stringer (2019) 41 Cal.App.5th 974, 983, see also People v. Medellin, supra.)

“In sum, the CALCRIM great bodily injury definition may impermissibly allow a jury to find great bodily injury based on less than moderate harm. (People v. Medellin, supra.)

 

Moreover, this same error is repeated in 40+ CALCRIM instructions on a multitude of issues such as Self Defense, Accident, Second Degree Murder, Manslaughter, Assault, Brandishing, Threats, Gangs and more. Our next post will contain a comprehensive list of these instructions.

 

Sample Instruction:

 

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than moderate harm.