Aggravating evidence of other violent criminal activity under Penal Code section 190.3, factor (b), includes other crimes in which defendant was an aider and abettor “‘whether or not the defendant’s actions were themselves violent….’” (People v. (George Brett) Williams (2013) 56 Cal.4th 630, 685)
Category Archives: Blog
Witness Credibility: Impeachment of Police Officer Witnesses with Prior Misconduct and/or Dishonesty
Among the factors affecting a witnesses’ credibility listed in CC 105 are the following:
–[Did the witness admit to being untruthful?]
–[What is the witness’s character for truthfulness?]
–[Has the witness been convicted of a felony?]
–[Has the witness engaged in [other] conduct that reflects on his or her believability?]
Similarly, CC 316 tells the jurors that if “a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness’s testimony.”
Hence when a police witness testifies for the prosecution the defense has the right to fully investigate his or her prior misconduct. For example, Milke v. Ryan (9th Cir. March 14, 2013) 711 F.3d 998: overturned a murder conviction because the prosecution failed to disclose the lead detective’s “long history of lying under oath and other misconduct.” “Multiple judicial determinations that [the detective] had lied in performing his official functions and violated suspects’ constitutional rights would have been highly relevant where the state’s case rested on his testimony.” (Id. at 1008.) Brady and Giglio required disclosure of all of this information to defendant. (711 F.3d at p. 1003; cf., (Brown v. Muniz (9th Cir. 2018) 889 F.3d 661, 675-676 [conviction upheld where police witnesses participation in the case was “tangential at best”].)
Death Penalty: Factor B (Other Violent Conduct) — Notice
People v. Whalen (2013) 56 Cal.4th 1, 73-74 held that the prosecution’s notice of other violent conduct offered in aggravation was sufficient where it “identified the alleged prior convictions by date, county of conviction, and type of offense … [and] also identified the alleged other criminal activity by date or approximate date, location, and type of offense, and included the names of potential witnesses as well as other possible evidence.”
Judge’s Duties When Responding to Juror Requests for Instructional Clarification
Duty to Consider Elaboration of Standard Instructions
Pursuant to PC 1138, when the jurors “desire to be informed on any point of law arising in the case … the information required must be given ….” PC 1138 “imposes upon the court a duty to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
However, in the final analysis, “[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.]” (People v. Beardslee, supra, 53 C3d 68 at 97; see also People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251; ABA Standards, Std. 15.43(a).)
Therefore, the court “must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. the court “must at least consider how it can best aid the jury.” (People v. Beardslee, supra, 53 C3d 68 at 97; see also People v. Franklin (2018) 21 Cal.App.5th 881, 887.)
Readback Of Prior Instructions May Not Be Sufficient If the Jury Inquiry Indicates a Failure to Understand the Original instructions
It is not uncommon for judges to simply read back the original instructions in response to juror questions about the instructions, see e.g. People v. Gonzales (1999) 74 CA4th 382, 389-90:
“Unfortunately, the trial court’s failure in the present case to aid the jury during its deliberations providing adequate instructions in response to its inquiry is a failure we perceive is all too common. Rereading previously given standard CALJIC instructions in response to a jury’s question on the law when those instructions are inadequate rather than responding directly to the jury’s question out of fear of committing error is not a rarity.”
However, if the inquiry indicates that the jury did not understand the original instructions, simply reading those same instructions over again may not be sufficient to eliminate the jury’s confusion. (People v. Samuels (2005) 36 C4th 96, 140, Werdegar, J., concurring [“By simply rereading CALJIC No. 8.84—the same instruction already provided to the jury—the trial court failed to clarify the legal issue that concerned the jury….”]; People v. Gonzalez, supra, 74 CA4th at 389-90 [court erred in repeating non-responsive CALJIC instructions when jury asked specific questions concerning defense of accident]; People v. Thompkins (87) 195 CA3d 244, 253; Estate of Mann (86) 184 CA3d 593, 614; U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050, 1053; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838; U.S. v. Bolden (D.C. Cir. 1975) 514 F2d 1301, 1308-09; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158.)
McDowell v. Calderon reaffirmed the view that a simple readback of prior instructions may not be sufficient when the jury has indicated that it was confused by those instructions. The 9th Circuit invalidated the conviction because: “the trial judge did not identify the exact problem confounding the eleven jurors. He simply referred the jurors to the original instructions defining mitigating circumstances. The jurors had these instructions with them all along. Both sides agree the instructions were technically flawless. They were, however, the same instructions that for some unknown reason eleven of the jurors did not correctly understand in the first place. Under these circumstances, we agree with Justice Broussard of the California Supreme Court: ‘There is no point in reiterating language which has failed to enlighten the jury.’ [Citation.]” (McDowell v. Calderon, 130 F3d at 838.) “The unremarkable prescription for [juror] confusion is that ‘[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.’ [Citation to Bollenbach v. U.S. (1946) 326 US 607, 612-613 [90 LEd 350; 66 SCt 402]. As the 7th Circuit has said, Bollenbach places on the trial judge ‘a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.’ [Citation] This duty exists, among other reasons, because ‘in a trial by jury…, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.’ [Citation to Bollenbach, 326 US at 612].” [internal quotation marks deleted] (Davis v. Greer (7th Cir. 1982) 675 F2d 141, 145; but see Weeks v. Angelone (2000) 528 US 225 [145 LEd2d 727; 120 SCt 727] [no error to refer jurors to specific portion of correct instruction that addresses their question].)
Residential Robbery is a Lesser Included Offense of Home Invasion Robbery
Multiple convictions may not be based on necessarily included offenses based on one criminal act. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].)
In People v. Hutchinson (2018) 20 Cal.App.5th 539, 550 a jury convicted the defendant of five counts of first degree residential robbery and five counts of home invasion robbery per PC 211. Each home invasion robbery count included an allegation that defendant and three others acted in concert and entered an inhabited dwelling house during the commission of the robbery per PC 213(a)(1)(A).
The reviewing court reversed the five counts of first degree residential robbery because they were not separate offenses from the five counts of home invasion robbery. Home invasion robbery has all of the elements of first degree residential robbery, with the additional element that it was done in concert with one or more other people. It does not create a separate offense. Therefore, all five of the first degree residential robbery convictions were merely lesser included offenses of the home invasion robbery offenses.
Instruction on Irresistible Impulse Not Required as the Standard for Sanity of a Juvenile Offender
In People v. Marsh (2018) 20 Cal.App.5th 694 the defense argued that due process and the prohibition against disproportionate punishment required the trial court to instruct on irresistible impulse as the standard for sanity of a juvenile. This claim was based on the same body of research on the development of brain function in adolescents that led to the decisions in Miller v. Alabama (2012) 567 U.S. 460 and Roper v. Simmons (2005) 543 U.S. 551.
However, the reviewing court held that due process does not impose any particular definition of sanity on the states or require the use of irresistible impulse as a measure of sanity. (California abrogated the irresistible impulse test in 1982.) Miller and Roper (2005) recognized that juveniles are constitutionally different from adults for purposes of sentencing. Their diminished culpability and greater potential for reformation make them not as deserving of the most severe punishments, but that does not mean they are less deserving of any punishment. The constitutional protection against disproportionate punishment does not prohibit punishment for conduct in response to an irresistible impulse.
Thus. the trial court thus properly instructed the jury on the standard for finding defendant not guilty by reason of insanity.
(People v. Marsh (2018) 20 Cal.App.5th 694, 700.)
Accomplice’s Out-of-Court Confession Was Inadmissible Testimonial Hearsay Which Violated the Confrontation Rights of the Defendant
In People v. Hopson (2017) 3 Cal.5th 424 a murder conviction was reversed because the judge admitted the deceased co-perpetrator’s confession to the police. Admission of this out-of-court confession — which “pinned much of the blame on defendant” – violated defendant’s Confrontation Clause rights because it constituted inadmissible hearsay. In so holding, the California Supreme Court rejected prosecution arguments that the confession was admitted solely to rebut defendant’s testimony. To the contrary, in order to undermine her testimony, the jury necessarily had to consider the confession for its truth, and it was used “to contradict defendant’s testimony by establishing a different account of the events surrounding the crime, which the prosecution expressly and repeatedly invited the jury to consider for its truth.”
Is There a Disconnect Between the CALCRIM Expert Witness Instructions (CC 332 and CC 360) and People V. Sanchez (2016) 63 Cal.4th 665
In its March 2018 revision of CC 360 CALCRIM added a citation to Sanchez but failed to explain the crucial changes that case made to the law regarding an expert’s reliance on hearsay. Nor did Calcrim suggest any revisions to the instructional language in light of Sanchez. Furthermore, as to CC 332 [Expert Witness Testimony] CALCRIM provided neither a reference to Sanchez nor an instructional revision. As a result, there appears to be a disconnect between Sanchez and the instructional language in CC 332 and CC 360.
In his criminal street gang trial Sanchez challenged the testimony of a prosecution expert witness offered to prove that the crimes were gang related. The case turned on whether the expert’s recitation of hearsay evidence in the form of police reports, a S.T.E.P. notice and a field interview card was permissible. Sanchez argued this practice violated his Sixth Amendment right to confront the people who prepared those documents.
The California Supreme Court agreed with the defense and adopted the following new rule: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.”(Id. at p. 686.) (Sanchez, supra, 63 Cal.4th at pp. 684, 686.) In so holding, the Supreme Court disapproved of Gardeley, Montiel and other cases that had ruled otherwise. (Id. at p. 686, fn. 13.)
The Court predicated this new rule on the undeniable reality that “the jury must consider expert basis testimony for its truth in order to evaluate the expert’s opinion….” (Id. at p. 684.) Accordingly, “hearsay and confrontation problems [can no longer] be avoided by giving a limiting instruction that such [evidence] should not be considered for its truth.” (Ibid.)
When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the jury, as true. Indeed, the jury here was given a standard instruction that it “must decide whether information on which the expert relied was true and accurate.” (CALCRIM No. 332 [Expert Witness Testimony].) Without independent competent proof of those case-specific facts, the jury simply had no basis from which to draw such a conclusion. The court also confusingly instructed the jury [per CC 360] that the gang expert’s testimony concerning “the statements by the defendant, police reports, F.I. cards, STEP notices, and speaking to other officers or gang members” should not be considered “proof that the information contained in those statements was true.” Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert “was true and accurate” without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true.
(Ibid.)
In light of the above, those portions of CC 332 and CC 360 identified by the Supreme Court as inconsistent with the rule announced in Sanchez should be re-examined.
Proposed Eyewitness Identification Legislation Emphasizes Need for Cautionary Instruction Regarding Eyewitness Testimony
The CALCRIM 315 on eyewitness identification does not admonish the jury to consider eyewitness testimony with care or caution.
Proposed legislation in California (Senate Bill No. 923) would provide statutory recognition of how pretrial identification procedures can contribute to inaccurate identifications and wrongful conviction of the innocent:
“This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications…. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program.”
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB923
The bill explains the need for such a state-mandated program because, inter alia, “[e]yewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California, eyewitness misidentification played a role in every DNA-based exoneration in the state.” Furthermore, the legislature recognized that even though the California Commission on the Fair Administration of Justice issued recommendations for law enforcement to adopt evidence-based eyewitness identification practices in 2008 “there is currently no uniform statewide use of best practices. Without consistent policies throughout the state, justice will vary by jurisdiction.”
Accordingly, at least until state-mandated protections are put into practice, the declarations of SB No. 923 emphasize the advisability of cautioning the jury regarding eyewitness identification testimony notwithstanding the failure of CC 315 to do so.
The following sample instruction addresses this concern:
You must view eyewitness testimony with caution and evaluate it carefully.
The above language was included in the eyewitness identification instruction given in People v. Johnson (1992) 3 C4th 1183, 1230 , fn 12 which the court held to have correctly instructed the jury. (Johnson, 3 C4th at 1234.)
For other sample cautionary instructions see F 315.1.1 Inst 3 (a-e) Eyewitness Identification Must Be Viewed With Caution
Proposed Legislation Regarding Eyewitness Identification Emphasizes the Need for Cautionary Instructions Regarding Pretrial Identification Procedures
The CALCRIM instruction on eyewitness identification does not admonish the jury to consider pretrial identification procedures utilized by the police. It simply tells the jury to consider whether “the witness able to identify the defendant in a photographic or physical lineup?”
Proposed legislation in California (Senate Bill No. 923) would provide statutory recognition of how pretrial identification procedures can contribute to inaccurate identifications and wrongful conviction of the innocent:
“This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications…. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program.”
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB923
The bill explains the need for such a state-mandated program in the following declaration:
The Legislature finds and declares the following:
(a) Valid eyewitness identifications are an important piece of evidence for solving crimes and securing rightful convictions. Compliance with best practices improves the reliability of the identification, whereas failing to comply with these recommendations increases the risk of a misidentification and also will make even positive identifications more likely to be rejected in court.
(b) Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California, eyewitness misidentification played a role in every DNA-based exoneration in the state.
(c) Wrongful convictions involving eyewitness misidentification threaten public safety because, when an innocent person is convicted, the real perpetrator remains undetected and could harm others.
(d) Over the past 30 years, a large body of peer-reviewed research has demonstrated that simple systematic changes in the administration of eyewitness identification procedures by law enforcement agencies can greatly improve the accuracy of identifications. These evidence-based practices include blind or blinded administration of identification; instructing the eyewitness that the perpetrator may or may not be present in the procedure; selecting fillers that match the eyewitness’ description of the perpetrator and do not make the suspect noticeably stand out; eliciting a statement of confidence from the eyewitness, in his or her own words, immediately after an identification is made; and recording the eyewitness identification procedure.
(e) Evidence based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of Sciences, the United States Department of Justice and the International Association of Chiefs of Police.
(f) In 2008, the California Commission on the Fair Administration of Justice issued recommendations for law enforcement to adopt evidence-based eyewitness identification practices. While some individual jurisdictions have implemented these procedures, there is currently no uniform statewide use of best practices. Without consistent policies throughout the state, justice will vary by jurisdiction.
In light of this legislative declaration an instruction such as one of the following samples — which go beyond CC 315 — would seem to be appropriate:
Alternative a:
In weighing an eyewitness identification made by a witness, consider any pretrial procedures which may have suggested to the witness that the defendant should be chosen.
Alternative b:
Unless the identification made in court resulted from the observations or perceptions of the witness during the commission of the crime rather than being the product of an impression gained during the pretrial procedures, the in-court identification must not be given any weight. The ultimate issue of the trustworthiness of an in-court identification is for you to decide.
[Cf. New Jersey Model Jury Charges – Criminal Chap. 1 (II) Other Non-2C Charges: [Identification] & 4 (New Jersey ICLE 4th ed. 1997).]
Alternative c:
You should also consider the circumstances of the earlier identification that occurred outside of court. For example, consider how that earlier identification was conducted, and how much time passed after the alleged crime before the identification was made.
[Source: 6th Circuit Pattern Instructions (1991) 7.11, & 3.]
Alternative d:
You may also consider the circumstances surrounding the later identification itself including, for example, the manner in which the Defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the witness’s identification of the Defendant.
[Source: 11th Circuit Pattern Jury Instructions (2003) SI 3, & 3.]
Alternative e:
You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant.
[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]
If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.
[You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with [his] [her] identification at trial.]
[Source: 8th Circuit Model Instructions (2000) 4.08, & 4-7.]
The following sample points and authorities, from FORECITE 315.1.1 Inst 9 provide further support for such an instruction:
The risk of inaccuracy and error in eyewitness identification evidence has long been recognized. (See e.g., United States v. Wade (1967) 388 US 218, 228-229 [87 SCt 1926, 1932-1933; 18 LEd2d 1149]; People v. Whalen (NY 1983) 59 NY2d 273, 278 [464 NYS2d 454; 451 NE2d 212].) “Of the first 100 wrongful convictions proven by DNA technology, over 80 percent relied to an important extent on sincere, confident, mistaken eyewitnesses.” (“2 Stories of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), p. 24 [citing “Actual Innocence,” by Jim Dwyer, Barry Scheck and Peter Neufeld (Doubleday, 2000)].)
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. (United States v. Wade, supra, 388 US at 228; see also e.g., Dispensa v. Lynaugh (5th Cir. 1988) 847 F2d 211, 220 [standing behind a suspect was suggestive]; Williams v. Armontrout (8th Cir. 1989) 877 F2d 1376 [improper show-up procedure].)
Post-event experiences and information can “dramatically affect” memory of the original event. (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §3-4, p. 54; see also Doyle, “2 Stories Of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), pp. 24-27 [discussing eyewitness testimony as “contaminated trace evidence” ]; People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) Hence, it is crucial to discover any post-event influence, including discussions with the police and pretrial identification procedures, to “learn how the witness came to construct and believe in the current version.” (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §3-4, p. 57; see also Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 3, “Preliminary Consideration.” )
Pretrial identification procedures can have a dramatic impact on the in-court identification. For example, cues in identification procedures or methods of questioning may affect the accuracy of an eyewitness identification. (See People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) Aside from the selection of distracters to include in a lineup or photo spread, another important consideration is the instructions given to the witness. It is generally agreed that it is a bad idea to explicitly lead a witness to believe that a suspect is in the lineup (“we have a suspect” ). It is far better to suggest that the actual offender might be absent from the lineup (“he may or may not be there” ). (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §4-6, p. 82.)
“… [A]n eyewitness is particularly likely to accept a misleading hint concerning an identification proceeding when the source of the hint is someone whom the eyewitness has some reason to believe is relatively expert concerning the situation. Classically, this situation is created when a police officer who the witness knows has been involved in an extensive investigation suggests that the officer’s favorite candidate is in a lineup.” (Ibid.)
It follows logically that where there has been a lineup or other pretrial identification procedure, the trier of facts should also be permitted to consider the suggestiveness of that procedure, and the extent to which it may have influenced the witness’s present identification, for “it is a matter of common experience that, once a witness has picked out the accused at the lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may … for all practical purposes be determined there and then, before the trial.” (United States v. Wade, supra, 388 US at 229; Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §4-5(b), p. 81 [one study concluded that eyewitnesses who publicly stated their choice stayed with that choice, even if incorrect, 78% of the time]; Williams & Hammelmann, Identification Parades, Part 1 [1963] Crim.L.Rev. 479, 482.)
“Where a witness testifies at trial regarding an identification of the accused, whether that testimony describes an in-court identification or a pretrial identification procedure, the trier of facts must be permitted to consider whether such testimony is worthy of belief, or whether it is lacking in reliability due to the suggestiveness of that identification procedure or of some other procedure employed prior thereto. To that end, the trier of fact may properly be presented with proof relevant to the suggestiveness of any such procedures. ‘This includes evidence of pre-lineup and post-lineup suggestions as well as all the factors which enter into the determination of fairness of the lineup conduct, the photo identification procedures, and the supporting and negating factors of independent source or reliability.’ ” (Sobel, Eyewitness Identification, (2nd Ed. 1984, West) §9.3, p. 9-13.)