In People v. Battle (2011) 198 Cal. App. 4th 50, 67, the defense challenged CC 401 because it “does not allow for the withdrawal defense if the defendant attempts to notify the other participants but such notification is impossible.” The Court of Appeal rejected the challenge: “This argument is without merit because the instruction properly states the law–that is, (1) the aider and abettor must notify everyone else he knows is involved in the commission of the crime that he is no longer participating and (2) that notification must be made early enough to prevent the commission of the crime.” (Ibid.)
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Aiding and Abetting: “Equally Guilty” Language
People v. Samaniego held that a portion of CC 400 was incorrect because it instructed the jury that “[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” (People v. Samaniego (2009) 172 Cal. App. 4th 1148.)
CC 400 was erroneous because it failed to inform the jury than an aider and abettor can be guilty of a lesser crime than the actual perpetrator. In the context of the Samaniego case, involving aiding and abetting a murder, “an aider and abettor’s guilt may . . .be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.” (Id at 1164.) Samaniego concluded that this portion of CC 400, “while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.” (Id. at 1165.)
In response to the Samaniego case, in April, 2010, CC 400 was revised. “The word ‘equally’ was deleted from the paragraph beginning: A person is [equally] guilty. . .’ and an explanatory bench note added: ‘An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state.’” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)
People v. Canizalez held that, in the context of the natural and probable consequences doctrine, it was proper to instruct the jury under CC 403 that the aider and abettor was equally guilty of the crime of which the perpetrator is guilty. (People v. Canizalez (2011) 197 Cal. App. 4th 832.)
People v. Canizalez held that giving CC 400 with the “equally guilty” language was harmless error.
Jury Unanimity (CC 3500 or CC 3501): Child Molestation: Emphasis of What Must Be Found Vis a Vis Multiple Sex Crimes
To convict a defendant of multiple sex crimes that are not distinguished: the jury must find 3 prerequisites “‘We see no constitutional impediment to allowing a jury, so instructed to find a defendant guilty of more than one indistinguishable act, providing. . .three minimum prerequisites. . .are satisfied.’ [Citation.] Those prerequisites include generic evidence describing “(1) the kind of acts committed, (2) the number of acts committed with sufficient certainty to support the alleged counts, and (3) the general time period in which the acts occurred.” (People v. Fernandez (2013) 216 Cal. App. 4th 540, quoting People v. Jones (1990) 51 Cal. 3d 294, 321.)
Jury Unanimity: Child Molestation
In a child molestation case, CC 3501 may be given instead of CC 3500.
“[CC 3501] is an alternative instruction to [CC No. 3500]. [CC 3501] affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in [CC 3500]: agreement as to the acts constituting each offense. But unanimity may also be found under [CC 3501] if the jury agrees ‘that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].’” (People v. Fernandez (2013) 216 Cal. App. 4th 540.)
Consciousness of Guilt: False Statements–Defense Theory Of Intoxication
In general, voluntary intoxication may not be considered for general intent crimes. (People v. Mendoza (1998) 18 Cal. 4th 1114, 1127-1128.)
However, voluntary intoxication may be relevant on the question of whether a defendant’s statements while intoxicated are probative of the defendant’s veracity within the meaning of CC 362. (People v. Wiidanen (2011) 201 Cal. App. 4th 526, 533.)
Wiidanen observed that “a defendant’s false or misleading statements made when he was intoxicated may not be probative of the defendant’s veracity, if the jury believed the defendant was too intoxicated to know his statements were false or misleading.” (Id. at 533.) The defense claimed that the defendant’s voluntary intoxication caused him not to have knowledge that the statements were false or misleading.
Hence, CC 362 should not be given with an unmodified version of CC 3426 because CC 3426 requires the jurors to consider voluntary intoxication regarding specific intent crimes, but voluntary intoxication is also relevant regarding whether a defendant’s statements while intoxicated are probative of his veracity. If both CC 362 and 3426 are needed in a case, judges should modify CC 3426 so that the jury can also consider voluntary intoxication regarding a defendant’s knowledge whether his or her statements were false or misleading. (People v. Wiidanen, supra, see also CC 3426 Bench Notes.)
Consciousness of Guilt: False Statements–Duty To Instruct Sua Sponte Is Unclear
The bench notes to CC 362 were revised to delete the statement that “The court has a sua sponte duty to instruct on consciousness of guilt. . ..” The Committee concluded that it was ambiguous whether or not a sua sponte duty existed here. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)
The Bench Notes were also revised on this date to note that CC 362 had been upheld by the Court of Appeal in April 2010. (CC 362, Bench Notes, citing People v. McGowan (2008) 160 Cal. App. 4th 1099.)
Consciousness Of Guilt: False Statements–Not Applicable To Trial Testimony
Courts have said that CC 362 should not be used to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant’s trial testimony. (People v. Beyah (2009) 170 Cal. App. 4th 1241.) CC 362 was revised on August 14, 2009, in response to this concern. As explained by the CC Committee on Criminal Jury Instructions in its report to the Judicial Council, “In People v. Beyah, 170 Cal. App. 4th 1241, 1247-1249, 88 Cal. Rptr. 3d 829 (2 Dist. 2009), the Court of Appeal invited the committee to clarify that [CC 362],Consciousness of Guilt: False Statements refers to a defendant’s statements made before trial. Otherwise the jury might conclude the admonition was directed at a defendant’s trial testimony.” The Committee clarified that point. (Advisory Committee on Criminal Jury Instructions Report (July 11, 2009), at pp. 3-4.)
In Custody Informant Should Be Treated Like an Accomplice
When the CC Committee revised CC 336 in August of 2012, it stated that “The legislature enacted Penal Code section 1111.5 requiring that the testimony of an in-custody informant be treated in a manner similar to that of an accomplice.” The committee revised CC 336, In-Custody Informant, accordingly, borrowing heavily from CC 334 and CC 335 on accomplice testimony. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of August 31, 2012, p. 3.) In People v. Davis (2013) 217 Cal. App. 4th 1484, the Court of Appeal held that a court must give this instruction sua sponte if the facts support it. CC 336 is extremely helpful to the defense, and should be requested whenever the prosecution is relying on the testimony of an in-custody informant. Defense counsel should vigorously argue this instruction to the jury in final argument as well.
Credibility: Child Molestation
People v. Fernandez ( 2013) 216 Cal. App. 4th 540, upheld CC 330 over a challenge that the instruction unfairly bolstered a child molestation victim’s credibility and impaired the defense’s ability to impeach her credibility based on her inability to perceive, understand, remember, and communicate. Relying on cases that had upheld CJ 2.20.1, the Court of Appeal held that CC 330 “simply instructs the jury to take into account a child’s ability to perceive, understand, remember, and communicate when making a credibility determination. It does not instruct the jury to subject a child’s testimony to a less rigorous credibility.” (Ibid.)
Witness Credibility Factors: Sua Sponte Duty to Delete Inapplicable Factors
The court has a sua sponte duty to give an instruction on factors relevant to a witness’s credibility. However, not all of the factors will apply in each case. Therefore, the court should strike those factors inapplicable in a case. Failure to do so may cause jurors to speculate about what evidence was not presented regarding the credibility of a witness. CC 225 repeats this “Witness” instruction for the Post-Trial instructions. CC 226 has been upheld, (People v. Lawrence (2009) 177 Cal. App. 4th 547; People v. Warner (2008) 166 Cal. App. 4th 653; People v. Anderson (2007) 152 Cal. App. 4th 919, 934) and requests to modify it have been denied. (People v. Chue Vang (2009) 171 Cal. App. 4th 1120.)
So long as the provisions of this instruction are given, the court is not required to give a specific cautionary instruction directing the jury to view the testimony of an immunized witness with distrust. (People v. Vines (2011) 51 Cal. 4th 830, 888-884.)