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Self Defense: Escalation of Nondeadly Assault

Where a counter assault to a nondeadly attack is so sudden and perilous that no opportunity is given to “decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense.’ [Citations.]” (People v. Salazar (2016) 63 C4th 214, 249.) However, People v. Gleghorn (1987) 193 CA3d 196, 201 and People v. Quatch (2004) 116 CA4th 294, 303 correctly hold that this qualification only applies where the defendant commits a simple assault. (Ibid.)  “[I]f one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation.]” [emphasis added in Salazar opinion.] (Ibid.)

For sample instructions and further briefing on this issue see FORECITE F 3471.

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Variance Between Reporter’s Transcript And Written Instructions

—Case By Case Analysis

When there is a variance between the reporter’s transcript and the written instructions, a case by case analysis is used to determine which part of the record is more credible. (People v. Smith (1983) 33 C3d 596, 599; see also People v. Carter (2003) 30 C4th 1166, 1199 [“where the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable…”]; People v. Marshall (1990) 50 C3d 907, 931, fn. 3 [Supreme Court quotes the instructions as they appear on the written forms and recorded in the Clerk’s Transcript and not the orally delivered instructions recorded in the Reporter’s Transcript, where there is no substantial variation between the two]; People v. Diaz (1989) 208 CA3d 338, 347, dissenting opinion of Brauer, J.) When the record is in conflict, it will be harmonized if possible, but if it is not possible to do so, that part of the record which, because of its origin and nature or otherwise, is entitled to greater credence, will prevail. (People v. Thompson (2009) 180 CA4th 974; but see People v. Wilson (2008) 44 C4th 758, 803 [“written instructions . . . control”].)

—Insignificant Discrepancies: Presumption That Jurors Followed Written Instructions

In People v. McLain (1988) 46 CA3d 97, 111, fn 2, the court orally instructed the jury and then sent written instructions into the jury room for use during deliberations. With regard to insignificant discrepancies between the oral and written instructions, the Supreme Court presumed “that the jurors were guided by the written version ….” (Ibid.; see also People v. Wilson (2008) 44 CA4th 758, 803; People v. Prieto (2003) 30 CA4th 226, 255 [“the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions”]; People v. Majors (1998) 18 CA4th 385, 410 [error in oral instruction was harmless in light of correct written instruction given to the jury]; People v. Osband (1996) 13 C4th 622, 687 [misreading of instructions is at most harmless error when the written instructions received by the jury are correct]; People v. Crittenden (1994) 9 CA4th 83, 138 [written instructions control over misspoken oral instructions]; People v. Rodriguez (2000) 77 CA4th 1101, 1112-13 [as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions]; but see People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)

—CC 200 Requires Reliance On Written Instructions

In People v. Mills (2010) 48 CA4th 158, 200-01 the trial court misspoke on three occasions while reading the instruction to the jurors but any error was not prejudicial in light of, inter alia, CC 200: “The trial court committed no reversible error, structural or otherwise. The risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. ‘We of course presume “that jurors understand and follow the court’s instructions.” [Citation.] This presumption includes the written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.’ [Citation.] Because the jury was given the correctly worded instructions in written form and instructed with [CC 200] . . . [‘ to only consider the final version of the instructions in your deliberations,’] and because on appeal we give precedence to the written instructions, we find no reversible error. [Citations.]”

–Unpublished Decision Defaults To Oral Instructions To Affirm Conviction

In People v. Anguiano UNPUBLISHED (April 23, 2013; F062011) the reviewing court found a way to rely on the oral instructions to cure a defect in the written instructions as follows:

“Although this court gives priority to the written version of an instruction when a conflict exists between the written and oral versions, the jury is not informed of this rule.” (People v. Wilson (2008) 44 C4th 758, 804.) In a criminal trial, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘”whether the ailing instruction … so infected the entire trial that the resulting conviction violates due process.”‘ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437; Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Huggins (2006) 38 C4th 175, 192.) “‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional] right ….'” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643, fn. omitted; Estelle v. McGuire, supra, 502 U.S. 62, 72.) Correct oral instructions, the jury’s awareness of differences between the written and oral instructions, and the weight of evidence against the defendant are all factors considered in determining whether or not an erroneous instruction was harmless. (People v. Wilson, supra, 44 C4th 758, 804.)

—Substantial Discrepancies: Oral Instructions Should Control.

As discussed in FORECITE PG V(G)(4), it is only through oral instruction that it “can be assured that each member of the jury has actually received all of the instructions.” (State v. Norris (1985) 10 Kan.App.2d 397 [699 P2d 585]; see also State v. Castoreno (1994) 255 Kan. 401, 411-12 [874 P2d 1173, 1180-81]; People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15.) This is so because there is no assurance that all or any of the jurors actually read the written instructions. (Ibid.; see also People v. Anguiano UNPUBLISHED (discussed above) [relying on oral instead of written instructions when there was “no indication that [the jury] was aware of the difference between the oral and written versions of CC1401 since it did not ask any questions on this point”]; cf. People v. Wilson (2008) 44 CA4th 758, 803-04 [“Written instructions . . . control” but “[i]t is possible the jury followed the oral instruction.”].) Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition. (See, e.g., People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)

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Improper to Instruct That an “Abiding Conviction” Means A Verdict “You Will Be Comfortable with … a Year from Now”

In People v. Muniz [UNPUBLISHED] (2011) 198 CA4th 1324, at the beginning of voir dire, the judge instructed the jurors that in “plain English” an “abiding conviction” means “when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now.”

The majority opinion on appeal concluded that “there is no reasonable likelihood that the jurors interpreted the trial court’s use of the word ‘comfortable’ to mean that they did not have to have an abiding conviction.”

However, as persuasively explained in the dissenting opinion, the judge’s definition was contrary to the California Supreme Court’s conclusion that the word “abiding,” in “abiding conviction,” means that the conviction is of a “lasting, permanent nature.” (People v. Brigham (1979) 25 C3d 283, 290-91.) Thus, the trial court erred when it instructed the jury that an “abiding conviction” may have a duration of a year or less.

Moreover, “as to depth of feeling, the trial court instructed the jury that it need only be ‘comfortable’ with its verdict. The trial court’s comment devalues the rule that the truth of the charge must be “deeply felt” by the jurors. [Citation to People v. Light (1996) 44 CA4th 879, 885] Mere ‘comfort’ does not convey how strongly the jurors must feel about their findings of fact.”

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Improper to Describe Proof Beyond a Reasonable Doubt in Terms of “Every Day” Decisions

In People v. Nguyen (1995) 40 CA4th 28, 35-37, the prosecutor told the jury that people apply the reasonable doubt standard “every day” and it is the same standard people customarily use in deciding whether to change lanes when driving or whether to get married. The court of appeal held that this argument trivialized the reasonable doubt standard.

As the Supreme Court held in People v. Brannon (1873) 47 C 96: “The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required … There must be in the minds of the jury an abiding conviction, to a moral certainty, to the truth of the charge, derived from a comparison and consideration of the evidence.” (See also People v. Johnson (2004) 115 CA4th 1169.)

Accordingly, the Nguyen court concluded: “We strongly disapprove of arguments suggesting the reasonable doubt standard is used in a daily life to decide such questions as whether to change lanes or marry. The argument is improper even when the prosecutor, as here, also states the standard for reasonable doubt is ‘very high’ and tells the jury to read the instructions.” (Nguyen, 40 CA4th at 36; see also People v. Johnson (2004) 119 CA4th 976, 984-86.)

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Judge Has Sua Sponte duty to Give Cautionary Instruction re: Jury Conduct But Standard of Prejudice Not Resolved

In People v. Carter (2010) 182 CA4th 522, 531-534 the reviewing court held that the failure to give CC 101 sua sponte was error. However, the parties disagreed on whether the harmless error analysis should be governed by People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable a more favorable result would have occurred] or Chapman v. California (1985) 386 U.S. 18, 24 [harmless beyond a reasonable doubt].)

The appellate court did not resolve the standard of prejudice dispute, because under either standard there was nothing to suggest any prejudice. The entire trial including opening and closing statements, testimony, instructions and deliberations took three days. The jury deliberated for slightly more than one hour. Thus, the court was convinced beyond a reasonable doubt that the giving of CC 101 would have had no effect on this trial.

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Juror Misconduct: Critical Examination of Evidence vs. Acquisition of New Evidence

Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical examination of the evidence admitted at trial is not impermissible. (See People v. Engstrom (2011) 201 CA4th 174, see also People v. Collins (2010) 49 C4th 175.) See also FORECITE F 101 Note 7; F 101 Note 8; F 332 Inst 8.

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Defendant’s Failure to Explain or Deny Evidence: CSC Adopts the Narrower View of When CC 361 Should Be Given

The defendant in People v. Cortez (2016) 63 C4th 101 testified to an exculpatory version of events which conflicted with her recorded statement to the police.

CC 361, stating that a testifying defendant’s failure to explain or deny evidence against her may be considered by the jury, was given over objection.  The CCA majority held that the defendant had adequately explained the evidence against her, so it was error to give the instruction.

In the California Supreme Court, which granted the Attorney General’s petition for review, the defense cited People v. Saddler (1979) 24 C3d 671, for the proposition that the failure-to-explain-or-deny instruction should be given “only where the defendant completely fails to explain a specific, significant piece of evidence,” and is not appropriate merely because “a defendant’s explanation conflicts with other evidence.”  The prosecution cited People v. Belmontes (1988) 45 C3d 744, and People v. Redmond (1981) 29 C3d 904, for the proposition that the instruction should be given anytime “the defendant’s testimony contains logical gaps, creat[es] crucial points of conflict with other trial evidence, or is otherwise bizarre, implausible or nonresponsive.”  [Internal quotation marks omitted.]

The CSC discussed the historical roots of the principle, including the 1934-65 period during which a defendant’s failure to testify at all was a proper subject for comment by the prosecutor and consideration by the jury which was held unconstitutional in Griffin v. California (1965) 380 U.S. 609.) In light of this history the CSC overruled Belmontes and Redmond and held that CC 361 should only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (63 C4th at 117.)

If the defendant offers an explanation of the adverse evidence, the instruction is not warranted, even if the defendant’s testimony is inconsistent with other witnesses or appears improbable. (Ibid.) The general witness credibility instruction, CC 226, adequately covers the situation in which the defendant’s testimony is inconsistent with other evidence and/or intrinsically does not seem credible. (Id. at 117-18.)

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Defense Has No Burden to Prove Any Specific Facts

CC 100, paragraph 3, sentence 4, provides as follows:

“Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty.”

CC 100 is technically correct as far as it goes. (See People v. Ibarra (2007) 156 CA4th 1174, 1179.) However, it only discusses the presumption of innocence in the context of the ultimate question of whether or not the defendant is guilty. Thus, the instruction fails to assure the jurors will understand that except for affirmative defenses (see e.g., People v. Lam (2004) 122 CA4th 1297, 1301) and preliminary facts (see e.g., EC 403) the defendant has no burden to present evidence or prove any specific facts at trial. (See FORECITE PG III(D); see also In re Winship (1970) 397 US 358, 363; People v. Hill (1998) 17 C4th 800, 831; People v. Woods (2006) 146 CA4th 106, 112-13; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127.)

Nor is this defect insignificant simply because CC 100 is merely a general preliminary instruction. None of the remaining CALCRIM instructions expressly clarify the applicability of the presumption of innocence to specific issues and facts.

First, no other CALCRIM instruction specifically informs the jurors that the defendant has no burden of proving specific issues at trial.

Second, CC 103, which specifically defines the presumption of innocence, does so only in the context of the prosecution’s burden to prove all elements of the charge. It does not discuss how the presumption relates to other essential factual issues. This suggests by implication that the presumption of innocence does not apply to essential facts which are not elements of the charge. (See FORECITE F PG X(D)(5).)

Third, many of the more specific CALCRIM instructions actually suggest that the defendant may have some burden of production or proof. (See e.g., FORECITE F 103.3 Inst 2; F 104.1 Inst 1; F 100.7 Inst 1.)

In sum, when considered in light of all the instructions, as the jurors are required to do (see CC 200, paragraph 5), CC 100 improperly permits the jurors to conclude that the defendant must prove or disprove specific issues and facts at trial.

Moreover, even if the instruction is adequate to survive a challenge on appeal under the appellate standard of review [whether there is a reasonable likelihood that the jury applied the instruction in a way that denied the defendant a fair trial (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 C4th 629, 663)], trial counsel should be entitled to clarify such ambiguities through modification of the instruction (e.g., People v. Guiuan (98) 18 C4th 558, 570 [defense counsel has duty/right to request appropriate clarifying or amplifying language to correct instructions] or argument to the jury (see e.g., FORECITE F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction.)

For sample instructions and additional briefing on this issue see   FORECITE F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything.

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The Chiu Doctrine Applies to Conspiracy Liability

In Chiu the Supreme Court held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. An aider and abettor’s liability for premeditated first degree murder must be based on direct aiding and abetting principles. See The Chiu Doctrine Explained

In re Lopez (2016) 246 CA4th 350 agreed with People v. Rivera (2015) 234 CA4th 1350, 1356 [Rivera] which held that the reasoning of Chiu applies equally to uncharged conspiracy liability:

The Chiu opinion did not directly address whether a coconspirator may be convicted of first degree premeditated murder under the natural and probable consequences doctrine. In [Rivera], the Court of Appeal addressed that issue and concluded the reasoning of Chiu applied equally to uncharged conspiracy liability because “the operation of the natural and probable consequences doctrines is analogous” for aiding and abetting and uncharged conspiracy liability. The Court of Appeal explained: “This analogy appeared in Chiu itself, when the court was cataloguing examples of the natural and probable consequences doctrine as follows: ‘The natural and probable consequences doctrine was recognized at common law and is firmly entrenched in California law as a theory of criminal liability. [Citations.]’ Thus, when the California Supreme Court in Chiu was explaining the natural and probable consequences doctrine, it understood its applicability to both aiding and abetting and conspiracy theories.” [Citation.] The [Rivera] court held that the trial court erred by instructing the jury it could reach a verdict of first degree murder if it found the defendant conspired to commit the target crime and first degree murder was a natural and probable consequence of the target crime. [Citation.] We agree with the holding and analysis of [Rivera].

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CC 3428 Too Narrowly Limits Jurors’ Use of Mental State Evidence

In People v. Townsel (2016) 63 C4th 25, the jury was instructed with a version of CJ 3.32 which provided as follows: “Evidence has been received regarding a mental defect or mental disorder of the defendant, Anthony Townsel at the time of the crime charged in Counts 1 and 2. You may consider such evidence solely for the purpose of determining whether or not the defendant Anthony Townsel actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder.” [emphasis added.] (63 C4th at 59.)

Because the jury was instructed that evidence of mental illness may be used only to determine whether the defendant actually formed the mental state which is an element of murder (CJ 3.32).  The witness-killing special circumstance finding, and a conviction for the separate offense of attempting to dissuade a witness, both of which had specific-intent elements, were reversed.

The CALCRIM version of this instruction, CC 3428, para.1, sentence 2, has a similar defect because it states:

You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.

Accordingly, CC 3428 should be modified in light of the decision in Townsel.