Category Archives: Blog

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Stalking Instruction Upheld But Has Possible Problem

The language of CC 1301 was upheld against several challenges in People v. Ibarra (2007) 156 Cal. App. 4th 1174, 1195-1197. In Ibarra, the Court of Appeal also rejected a request for a unanimity instruction noting that stalking always involves a continuous course of conduct over a period of time. (Id. at 1198.)

The Court of Appeal in People v. McPheeters (2013) 218 Cal. App. 4th 124, 131-141, refused to reverse a conviction based on several challenges to CC 1301. But, the appellate court indicated that there are possible problems with the instruction regarding knowledge that a person is victim’s immediate family member, and defendant’s intent that his comments to a third party be conveyed to the victim. (Ibid.)

McPheeters, 218 Cal. App. 4th at 134, described the defense position as follows:

“Defendant’s position is that the challenged instruction was not correct in law because the statute must be interpreted to require knowledge that a person is the victim’s immediate family member within the meaning of the [Penal Code] section 649.9. subdivision (1), before any statements or conduct towards that person can qualify as a credible threat to the victim. According to defendant, statements made to a person other than the victim constitute a credible threat within the meaning of [Penal Code] section 649.9, subdivision (g), only if the defendant knows that the person is an immediate family member of the victim. Absent such knowledge, defendant argues, an accused could not harbor the specific intent to place the victim in reasonable fear for the safety of that family member. Defendant contends this violates [Penal Code] section 20, which requires that “‘[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.’ (§ 20.) ” (McPheeters, 218 Cal. App. 4th at 134.)

However, the court did not resolve this contention.

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Due Process Challenge To Use Of Domestic Violence As Character Evidence

Defense counsel should challenge the admission of domestic violence evidence as character evidence on federal due process grounds. However, even if such evidence is admitted, defense counsel should challenge this CC with respect to the use of such evidence. California case law notwithstanding, this instruction is unintelligible and unconstitutionally reduces the burden of proof. The CC tells the jury that if they find that the prior domestic violence has been proved to a preponderance, the may then use that evidence as part of the determination of whether the defendant is guilty. This mixing of the burden of proof between preponderance and proof beyond a reasonable doubt is certain to confuse the jury. Morever, the CC gives no guidance on how to use proof of the character of the defendant. May that evidence be used to fill any gap in the prosecution’s evidence?  May it be used to prove identity?  Intent? Age of the victim?  The CC gives the jury no direction at all on this critical point, and thus essentially permits the jury to use this character evidence in any way they want, unguided by judicial direction. This surely violates due process and defense counsel should so argue. (See CC 852, Authority indicating that People v. Cottone (2013) 57 Cal. 4th 269, 293, fn. 156, held there was no sua sponte duty to provide the jury with CC 852.) CC  853’s Bench Notes do not state that the court has a sua sponte duty, but do state that the court must give this instruction upon request. (CCJICH § 5.2, p. 519.)

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Use Of Other Counts In The Charges As Propensity Evidence

People v. Villatoro (2012) 54 Cal. 4th 1152, held that evidence of other sex crimes pursuant to EC § 1108 may be admitted even when the evidence consists of other sex crimes alleged as counts in the charging document. EC § 1108 and EC § 1109, which is the underlying statute for CC 852, are substantially identical and thus it may be permissible to use CC 852 regarding evidence of other crimes alleged as counts in the charging instrument.

However, if other counts are used for propensity, it is important that the jury not be instructed that the other counts can be proved by a mere preponderance of the evidence. (Id. at 1167-1168.) Using CC 852 unaltered when the only evidence of domestic violence consists of other counts in the charging document would confuse the jury because they would have to perform mental gymnastics to consider the evidence for purposes of using a preponderance of evidence standard but only convict the defendant of the counts if convinced beyond a reasonable doubt. In sum, CC 852 should be modified to instruct the jury that the other counts must be proved beyond a reasonable doubt.

Caveat: In Villatoro, the court stressed that the trial court should use its discretion under EC § 352 to determine whether the other charged offenses are dissimilar enough, or so remote or unconnected to each other, that admission of them for propensity evidence would be too prejudicial. (Id. at 1163.)

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Death Penalty: Aggravating and Mitigating Circumstances

CC 763, which lists those factors that can be considered in the penalty phase of death penalty trials, was revised on December 9, 2008. As explained by the Advisory Committee on Criminal Jury Instructions in its report to the Judicial Council, CC 763 “was revised to clarify that ‘violent criminal activity’ only includes crimes directed at a person, not at animals or personal property.” (Advisory Committee on Criminal Jury Instructions Report (Oct. 10, 2008), at p. 1.) Accordingly, CC 763 was amended to state that “Violent criminal activity is criminal activity involving the unlawful use, or attempt to use, or direct or implied threat to use force or violence against a person.” The revision was a result of the opinion in People v. Doolin (2009) 45 Cal. 4th 390, which excluded force against animals as an aggravating factor.

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Gang Special Circumstance

 

People v. Carr (2010) 190 Cal. App. 4th 475, 486, held that CC 736’s “inclusion of a knowledge element in the special circumstances of killing on behalf of a gang is not legally incorrect even if the statute itself does not expressly require its inclusion because it is constitutionally required.” Carr did note, however, that the CJ equivalent’s Comments on its instruction were wrong: CJ 8.81.22’s Comments stated that “Since that same language is found in Penal Code § 190.2(a)(22), the committee has included the pertinent elements of that section into its definition of the essential elements of this special circumstance allegation.” (Ibid.) As Carr explained,“section 190.22, subdivision (a)(22), does not incorporate subdivision (a) of section 186.22, which defines the substantive criminal offense of active gang participation; instead, it incorporates subdivision (f) of section 186.22, the subdivision that defines the term ‘criminal street gang.’” (Ibid.)

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Malice and Voluntary Intoxication

People v. Turk (2008) 164 Cal. App. 4th 1361, 1382, rejected the defendant’s argument that the instruction gave insufficient guidance that malice aforethought and intent to kill are the same thing. The jury was instructed under CC 520 in defining murder that, “[t]he defendant acted with express malice if he unlawfully intended to kill.” (Ibid.)  When combined with CC 520, CC 625 adequately instructed that the jury could consider evidence of the defendant’s voluntary intoxication in deciding whether he had acted “with an intent to kill” provided sufficient guidance. (Id. at 1882-83.)

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Involuntary Manslaughter: Existence of Legal Duty As Jury Question

The Bench Notes state that the determination of whether a defendant has a legal duty is one to be decided by the judge, not the jury. However, this conclusion violates United States Supreme Court precedents which require that every element of an enhancement must be proved beyond a reasonable doubt and found true by a jury or admitted by the defendant. (See People v. Blakely (2000) 23 Cal. 4th 82, 94-100.) Thus, the issue of whether the defendant has a legal duty should be decided by the jury. The portion of the CC telling the jury that the defendant does have a legal duty should not be given.

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Involuntary Manslaughter and Criminal Negligence

 

People v. Butler (2010) 187 Cal. App. 4th 998, 1014, upheld CC 580 as follows:

 

The trial court’s adherence to the formulation of the instruction in [CC 580] adequately informed the jury of the criminal negligence standard applicable to all three forms of involuntary manslaughter. As [previously stated by the Court of Appeal] ‘an act is criminally negligent when a man of ordinary prudence would foresee that the act would cause a high degree of risk or great bodily harm.’ This is essentially the same standard provided to the jury by the trial court; i.e., the defendant committed involuntary manslaughter if the ‘defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed.’

 

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Provocation And Premeditation/Deliberation

 

In People v. Hernandez (2010) 183 Cal. App. 4th 1327, the defendant argued that CC 522 failed to specifically state that provocation can negate premeditation and deliberation necessary for first degree murder. The reviewing court acknowledged that CJ 8.73 did specifically state that premeditation and deliberation can be negated by provocation. However, CC 522 stated that provocation “may reduce a murder from first degree to second degree, and CC 521, the general instruction on murder, stated that a decision to kill made rashly, impulsively, or without consideration is not deliberate and premeditated.” (Id. at 1333.) Hernandez concluded that when CC 521 and CC 522 are both given, jurors would adequately understand that “the existence of provocation can support the absence of premeditation and deliberation.” (Id. at 1334.)

 

The defendant also argued that CC 522, telling the jury that the “weight and significance” of the evidence of provocation was for them to decide, could allow the jury to arbitrarily reject the evidence of provocation. Hernandez found that there was no reasonable likelihood that a jury would interpret the instruction in this manner: the instruction here merely correctly told the jury that it should decide the strength and importance of the evidence of provocation in assessing whether a reasonable doubt existed that the offense was premeditated. (Ibid.)

 

The defendant in Hernandez also argued that CC 522 was invalid because, unlike CJ 8.73, it did not tell the jury that provocation which is insufficient to reduce murder to manslaughter could be enough to reduce first degree murder to murder in the second degree. Hernandez rejected this claim because CC 522 tells the jury it can consider provocation for both second degree murder and manslaughter, “There is nothing in the instruction that suggests the jury might have failed to fully consider the provocation evidence for second degree murder based on a rejection of the evidence of manslaughter.” (Id. at 1333.) Strategy Note: Notwithstanding Hernandez, counsel should be alert on this issue, and should request a clarification of CC 522 to make it explicit that provocation can preclude premeditation and deliberation.