Category Archives: Blog

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Evidence Limited to Courtroom: Sua Sponte Duty to Admonish

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The court has a sua sponte duty to give CC 101, limiting jurors to considering evidence that is presented in the courtroom. (See People v. Carter (2010)182 Cal. App. 4th 522.)

 

It is critical that jurors be instructed that they cannot conduct any independent research on a case and should not discuss the case, even with other jurors, until it is completed. (People v. Danks (2004) 32 Cal. 4th 269, 298-300.) With the advent of new technology, such as text-messaging, twittering, etc., the court should emphasize that no means should be used to communicate with others regarding the case and that a violation of this rule is considered to be juror misconduct.

 

In 2010, CC 101 was revised to specify that, in addition to prohibiting jurors from sharing information by writing, by e-mail, and on the Internet, jurors should not use telephones, or “any other means of communications.” The CC Committee explained that it deliberately did not “choose to list specific means of inappropriately sharing information with electronic devices by name. The committee concluded that a list of specific Web sites such as Google, Facebook, and My Space is likely to require constant updates because popular Web sites come and go very quickly in the digital age. Moreover, when jurors hear a blanket admonition not to communicate with others about the trial, that admonition may be undercut by a list of specific forbidden means of communication. After listening to a long list, jurors may even conclude that modes of communication not mentioned are permitted.”(See Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, pp. 3-4.)

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California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine.

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In People v. Canizales, S221958 (E054056; 229 CA 4th 820) the defendant filed a petition for review which framed the question presented as follows:

 

In a criminal case charging attempted murder of a victim who was not killed or even injured, is it error to instruct the jury with a kill-zone instruction if there is evidence that, in order to kill a primary target, the defendant used lethal force that created a risk of death to persons around the primary target, but no evidence that the defendant used lethal force designed and intended to kill everyone in an area around the primary target?

 

The Court of Appeal in Canizales disagreed with another published opinion, People v. McCloud (2012) 211 Cal.App.4th 788 which held that it is error to give a kill zone instruction when there is no evidence that the defendant used lethal force designed and intended to kill everyone in an area around the primary target. It stated, “The kill zone theory … does not apply if the evidence shows only that the defendant intended to kill a particular targeted individual but attacked that individual in a manner that subjected other nearby individuals to a risk of fatal injury.” (Id. at 798, italics in original.) On the other hand, the Canizales Court of Appeal concluded that the kill-zone instruction was properly given because “five bullets were fired,” and “the jury could reasonably infer that [appellant] used a means to kill Pride that inevitably would result in the death of other victims within the zone of danger.”

 

When granting review the Court stated that the case presents the following issue: “Was the jury properly instructed on the ‘kill zone’ theory of attempted murder?

 

It remains to be seen how broadly the Court will rule on the “kill zone” concept in Canizalves. However, as previously discussed in Forecite there are many other potential problems with the current CALCRIM instruction (CC 600) on this doctrine:

 

See e.g.,

 

F 600.2 Inst 2 The Actus Reus And Intent Elements Of CC 600 Do Not Accurately Reflect The Elements Of Attempted Murder Prosecuted Under A “Kill Zone” Theory

 

F 600.2 Inst 3 Multiple Counts Based On Firing A Single Shot – CALCRIM 600 Should Be Tailored To Reflect The Factual Elements Of The Kill Zone Theory*

 

F 600.2 Inst 4 Tailoring To Facts: CC 600 Should Name The Defendant And Alleged Victim

 

Accordingly, it may be appropriate to preserve any such kill zone issues pending the decision in Canizales.

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Attempted Criminal Threat Requires Dual Jury Findings

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People v. Chandler (2014) 60 Cal. 4th 508, 524-525 relied on First Amendment concerns in construing PC 422 to require both a subjective and objective element:

 

To avoid substantial First Amendment concerns associated with criminalizing speech, we construe the offense of attempted criminal threat to require proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.

 

(See also People v. Jackson (2009) 178 Cal. App. 4th 590, 598.)

 

And the high court emphasized that the jurors must be instructed on both of these elements:

 

Accordingly, when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear.

 
The Court also emphasized that this rule was limited to attempted criminal threats under PC 422.

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Chapman or Watson: What is the Standard of Prejudice For Misinstruction on Defense Theory?

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In People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220 the trial judge failed to correctly instruct the jury on the defense theory of mistake of fact. On appeal the defendant cited three federal circuit court cases holding that the failure to instruct on a defense constituted federal constitutional error which, under the Chapman test, requires reversal unless the prosecution shows beyond a reasonable doubt that it was harmless. (Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091; Davis v. Strack (2d Cir. 2001) 270 F.3d 111; Barker v. Yukins (6th Cir. 1999) 199 F.3d 867.)

 

However, the Watt Court distinguished the cited cases because in each of those the failure to instruct deprived the defendant of his right to present a defense and so infected the entire trial that it violated due process and the right to a fair trial. (Bradley v. Duncan, supra, 315 F.3d at p. 1094; Davis v. Strack, supra, 270 F.3d at p. 131; Barker v. Yukins, supra, 199 F.3d at p. 876.)

 

The California Supreme Court has not yet determined the test of prejudice for failure to instruct on an affirmative defense. (See People v. Salas (2006) 37 Cal.4th 967, 984; Watt at 1218.) However, the Watt Court could not find any published opinion that embraces the Chapman standard for either the failure to instruct, or, as here, error in the instruction that was given. “Rather, published opinions have concluded that the Watson test applies. [Citations.]” (Watt at 1219.)

 

Nevertheless, the Court avoided directly ruling the issue by concluding that “under either test, the error does not require reversal of defendant’s conviction.” (Ibid.)

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“On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense

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Ordinarily, the state need not prove the precise date on which an alleged offense occurs. (See PC 955.) CC 207 is the CALCRIM instruction on this point.

 

However, where the state charges a defendant with a criminal offense on occurring during particular dates — and when the dates form the basis of the defense (e.g., alibi — it is fundamentally improper to instruct the jury it may nevertheless convict the defendant if it finds the crime was committed reasonably close to the date(s) alleged. (See, e.g., People v. Jennings (1991) 53 Cal.3d 334, 358-359; People v. Jones (1973) 9 Cal.3d 546; People v. Barney, (1983), 143 Cal.App.3d at p. 490. See also generally People v. Gavin (1971) 21 Cal.App.3d 408, 415-420; People v. Whitacre (1926) 79 Cal.App. 27, 31-32.)

 

For briefing alleging ineffectiveness assistance of counsel for not objecting to CC 207 in light of the defendant’s alibi defense see People v. Scott 2014 WL 4655859 (Cal.), 7-13.

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Is Misdemeanor Sexual Battery a Lesser Included of Sexual Battery by Fraud?

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There is a split of authority among the Courts of Appeal on the question of whether or not misdemeanor sexual battery (PC 243.4(e)(1)) is a lesser included offense of sexual battery by fraud (PC 243.4 (c)(3).) (See, People v. Babaali (2009) 171 Cal.App.4th 982 and People v. Smith (2010) 191 Cal.App.4th 199.)
 
In People v. Robinson, DEPUBLISHED, S220247(G048155) 227 Cal. App. 4th 387, 399 [nf] the California Supreme Court granted review to resolve this conflict.

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Mistake of Fact – Role of Reasonableness

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Mistake of Fact – Jury May Consider Reasonableness of Belief on the Issue of Good Faith
 
It is well established that a good faith mistake of fact can negate specific mental state elements of a charge such as knowledge. (See People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220; People v. Lawson (2013) 215 Cal.App.4th 108, 115. Thus, the Bench Notes to CC  3406 read, in pertinent part, “If the mental state … at issue is … knowledge, do not use the … language requiring the belief to be reasonable.”
 
However, the issue of reasonableness may still be relevant on the question of good faith:
 

In determining if a mistake of fact has negated a specific mental state, the jury may consider reasonableness in deciding if the belief was in good faith—a highly unreasonable belief can support an inference of bad faith, so while objective reasonableness is not a requirement of the defense of mistake, subjective reasonableness can be a relevant consideration on the subject of good faith. [Citations.] (Watt at 1218.)

 
And, if a highly unreasonable belief can support an inference of bad faith it follows that a highly reasonable belief can support an inference of good faith.

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Does Implausible or Illogical Testimony Warrant Instructing Per CC 361 on Defendant’s Failure to Explain or Deny Evidence?

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In People v. Cortez, S211915 (B233833; nonpublished opinion; (Cal. Sept. 18, 2013) the Supreme Court granted the prosecution’s petition for review to consider, the following issues: In the petition for review the attorney general characterized these issues as follows:
 

1. May a court instruct the jury with CALCRIM No. 361 on the failure to explain or deny evidence where a defendant’s testimony is implausible or contains logical gaps?

 

2. Did the Court of Appeal err by reversing the conviction of defendant Cortez due to error in admitting a statement made by defendant Bernal to his nephew, error in instructing the jury with CALCRIM No. 361, and prosecutorial misconduct.

 

3. Is a statement that implicates a non-testifying codefendant admissible where it is against the declarant’s interest, inextricably tied to and part of the statement against interest, and made under circumstances that this Court and the Court of Appeal have repeatedly deemed to demonstrate trustworthiness?

 

4. Did the prosecutor commit prejudicial error in rebuttal argument by making a brief and isolated statement regarding reasonable doubt that the jury’s “belief” must not be “imaginary” but rather be “based in the evidence in front of me” after the jury was properly instructed on the standard of proof and to follow the trial court’s instructions

 
With respect to the CC 361 issue the defendant’s briefing in the California Supreme Court argued that CC 361 “is justified by an “implausible” explanation only if the explanation fails to account for undisputed physical evidence or long gaps of time-in other words, if it is not really an ‘explanation’ at all. No case holds CALCRIM No. 361 is warranted merely because the defendant’s explanation involves an arguably less likely interpretation of the evidence.” (See PEOPLE v. CORTEZ, 2014 CA S. Ct. Briefs LEXIS 1857; see also (People v. Kondor (1988) 200 CA3d 52, 57; see also People v. Saddler (1979) 24 C3d 671, 682; People v. Lamer (2003) 110 CA4th 1463, 1469

 

 

 

 

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What Is A “Major Participant” Within The Meaning Of Penal Code 190.2(d)?

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Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment did not prohibit capital punishment for an accomplice to a felony murder if the accomplice acted as a major participant in the underlying felony and his or her mental state was one of “reckless indifference to human life.” (Estrada, at p. 575.) Section 190(d) requires both elements but no court has explained how the term “major participant” should be defined.
 
The California Supreme Court has granted review to consider this question:
 
See, People v. Banks, S213819. (B236152; nonpublished opinion; Los Angeles County Superior Court; BA347305 Petition for review after the Court of Appeal amended and affirmed judgments of conviction of criminal offenses.
 
The court limited review to the following issues:
 

(1)        Was the evidence sufficient to establish that defendant Matthews was a “major participant” within the meaning of Penal Code section 190.2 subdivision (d)?

(2)        Does the true finding of the special circumstance violate due process? (U.S.Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)

 
It has been held that the term “major participant” as used in PC 190.2(d) is commonly understood by those familiar with the English language and, therefore, an instruction as to its meaning will only be given upon request. (See Estrada (95) 11 C4th at 574  see also People v. Proby (98) 60 CA4th 922, 933.) However, the fact that the California Supreme Court has deemed it necessary to address the meaning of the term provides a renewed basis upon which to request a definitional instruction. Here are some sample definitions which might be might be appropriate to request:
 
Sample # 1:

A major participant is one whose role is notable or conspicuous and who is one of the more important participants.

Sample # 2:

A major participant is one such as the ringleader, triggerman or the one who planned the crime, whose role is notable or conspicuous and who is one of the more important participants.

Sample # 3:

A major participant must do more than merely aid and abet in the crime; he or she must be directly involved in the commission of the felony as an active participant in planning or carrying out the crime.

 
The definition of “major” in Alternative # 1 above was suggested by Proby. Proby criticized the use of the “ringleader” and “triggerman” examples in Alternative # 2 above because it “would require… a finding that defendant was a “ringleader” `whose participation was greater in importance than that of other participants.’” (Proby, 60 CA4th at 929.) However, this instruction does not “require” a finding that the defendant was a “ringleader” etc., it merely provides examples of one who may be a major participant. (See e.g., Parker v. Womack (51) 37 C2d 116, 120; People v. Marshall (90) 50 C3d 907, 938; People v. Keenan (88) 46 C3d 478, 504; People v. Mora (95) 39 CA4th 607, 617.)

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Court Of Appeal Reverses For Failure To Instruct On Lesser Offense

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The two subdivisions of Vehicle Code section 23110 state:

 

“(a) Any person who throws any substance at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor.
“(b) Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison.” (Italics added.)

 

People v. Mullendore (2014) 230 Cal. App. 4th 848, 856-857 concluded that VC 23110(a) as a lesser included of VC 23110(b) because a violation of subdivision (b) necessarily constitutes a violation of subdivision (a).

 

Moving on to harmless error analysis focused on the need to avoid forcing the jury into an “unwarranted all-or-nothing choice” which creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because “the defendant is plainly guilty of some offense … .” (Ibid; internal citation and punctuation omitted.)

 

For example, if the jury in Mullendore found that the defendant acted intentionally and not accidentally, it would have concluded that he committed the vehicle-related conduct prohibited by the statute and “may have been inclined to return a guilty verdict for this count even if one or more of them had doubts whether he had the specific intent to inflict great bodily injury… . Had the jury been given the option of convicting defendant of the [lesser] vehicle-related offense … it may well have selected this lesser offense.” (Ibid.) Hence, the error was not harmless.