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Rejection or Disbelief of Alibi or Third Party Guilt Evidence

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This post [0003 Centeno] discusses the problem of juror confusion regarding whether rejection or disbelief of defense evidence can supply proof that is missing from the prosecution’s evidence. This risk is particularly high with defenses such as alibi and third party guilt. The greatest danger of diluting the burden of proof in such cases is acute because the jurors are likely to simply assume the defendant is guilty if they do not believe the defense theory that someone else committed the alleged offense. For example, as observed by the 6th Circuit:

 

“The [alibi] defense can easily backfire, resulting in a conviction because the jury didn’t believe the alibi rather than because the government has satisfied the jury of the defendant’s guilt beyond a reasonable doubt, and it is the trial judge’s responsibility to avoid this possibility.” (U.S. v. Robinson (6th Cir. 1979) 602 F2d 760, 762; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 6.02, commentary [Alibi] p. 129 (1991).)

 

Thus, the trial court errs in failing to tell the jury that a contrary finding regarding the alibi testimony does not automatically authorize a guilty verdict. (See People v. Leasure (NY 1970) 312 NYS2d 563, 564 [error to instruct jury that it could draw an inference of guilt from disbelief of the alibi witness]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:09 [Defenses: Alibi–Commentary] pp. 242-43 (West, 1999).)

 

Similarly special instructions may be appropriate with third party guilt defenses. The sample alibi instructions below may be adapted to a third party guilt situation.

 

Sample Instructions Regarding Rejection or Disbelief of Alibi* Evidence:

 

CAVEAT: re: use of the term “alibi” see FORECITE F 3400.1 Inst 3 Delete The Term “Alibi” From Title Of Instruction   [link***]

 

Alibi Alternative a:

 

Disbelief of the alibi testimony is not evidence of guilt. There has to be other testimony sufficient to persuade you beyond a reasonable doubt of the defendant’s guilt.

 

[See U.S. v. Fortes (1st Cir. 1980) 619 F2d 108, 123.]

 

Alibi Alternative b:

 

Even if the jury should choose to disbelieve alibi evidence, the government retains the burden of proof and must meet the reasonable doubt standard concerning the defendant’s presence at the time and place charged.

 

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS – CRIMINAL 6.03 [Alibi] p. 95 (1999).]

 

SAMPLE ALIBI INSTRUCTION # 3:

 

If you disbelieve the defendant’s alibi evidence, such disbelief does not create an inference that the defendant was present when the [alleged] offense was committed.

 

[See OHIO JURY INSTRUCTIONS, VOLUME 4 – CRIMINAL, 4 OJI 411.03 [Alibi] p. 70 (Anderson, 2000).]

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Synonymous Terminology Used to Designate a Person Who Committed a Crime

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PC 31 and PC 971 use the use the word “principal” to designate a person who may be liable to be convicted for committing a crime. However, some cases use descriptive words such as “participant” or “confederate.” And, some jury instructions (e.g., CC 373, CC 402, CC 415, CC 540C, CC 541C, and CC 563) refer to a “coparticipant” which is defined as including the “perpetrator or anyone who aided and abetted the perpetrator.” In this context, “these terms are synonymous.” (People v. Smith (2014) 60 Cal. 4th 603, 620, fn. 2.) They “refer to any principal in the crime, whether a direct perpetrator or aider and abettor.” (Ibid.)

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Partial Acquittal Rule: Does Stone Survive Blueford?

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In Stone v. Superior Court (1982) 31 Cal.3d 503 the court recognized that the “deceptively simple” yet “complex, rapidly expanding body of law” surrounding the constitutional prohibition against double jeopardy arose from both the Fifth Amendment to the United States Constitution and Article I, section 15 of the California Constitution.

 

However, Blueford v. Arkansas (2012) 566 U.S. ___, 132 S.Ct. 2044 overruled the precedent which provided the federal constitutional basis for the partial acquittal rule.

 

Meanwhile, relying on People v. Fields (1996) 13 Cal.4th 289 – which suggested an independent California Constitutional basis for the Stone rule – the 4th District Court of Appeal held that Stone survived Blueford:

 

[Fields] does not directly resolve the question presented here, i.e., whether the Stone partial acquittal rule survives Blueford. However, because Fields makes it abundantly clear that California’s Constitution is the independent source of its double jeopardy jurisprudence to the extent that it may provide protection greater than is mandated by the federal Constitution, we conclude that we are compelled to hold that the Stone rule arises independently of the federal Constitution and that it retains its validity under the California Constitution until such time as our Supreme Court holds otherwise. We emphasize that in Blueford, the court did not hold that a partial acquittal rule is impermissible under the federal Constitution; on the contrary, it held only that such a rule is not compelled by the Fifth Amendment. (Blueford, supra, 132 S.Ct. at pp. 2050–2053.) Because Blueford does not mandate the abrogation of Stone, we do not believe it is our prerogative to disregard a rule enunciated by the California Supreme Court simply because the court did not explicitly hold that the rule arises under both the state and federal Constitutions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Accordingly, we hold that Blueford abrogates Stone only to the extent that Stone held that the partial acquittal rule arises under the federal Constitution, and that the partial acquittal rule continues to apply in prosecutions in California state courts. (People v. Aranda (2013) 219 Cal. App. 4th 764, 162 Cal. Rptr. 3d 169, 174 review granted and opinion superseded, 314 P.3d 487.)

 

In December 2013 the California Supreme Court granted review in Aranda to presumably decide once and for all whether Stone survived Blueford.

 

In May 2014 Amicus Brief filed by the LA County Public Defender in April 2014 succinctly explains the issue as follows:

 

The prosecution, as expected, argues that this court relied upon Blueford v. Arkansas (2012) 566 U.S. ___, 132 S.Ct. 2044. The defense, as expected, argues that Stone was based upon California’s Constitution and California precedent. The majority opinion in Stone discusses both state and federal law without expressing a leaning toward one predominating over the other. (2014 WL 3373348 (Cal.), p. 3.)

 

The amicus brief also does an excellent job of laying out the argument and authority in favor of finding an independent California constitutional basis for the acquittal first rule including the following:

 

This court has recognized that the United States Constitution sets forth the minimum standards of double jeopardy for criminal defendants. Importantly, and perhaps critically, this court also recognized that “[o]f course, we remain free to delineate a higher level of protection under article I, section 15 … of the California Constitution.” (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 71, fn. 13 citing Stone, supra.) For almost 150 years, this court has accorded criminal defendants more protections under California’s double jeopardy clause than the minimum decreed by the United States Constitution…[T]his court has historically given California’s Constitutional double jeopardy clause independent significance and priority, despite United States Constitutional law to the contrary. (Id. At p. 5.)

 

Oral argument has not yet been calendared in Aranda.

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Use of Diagram or Visual Aid to Explain Proof Beyond a Reasonable Doubt

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In People v. Centeno (2014) 60 Cal. 4th 659, 662 the prosecutor used a diagram showing the boundaries of California and urged the jury to convict based on a “reasonable” view of the evidence. In addressing this issue the CSC discussed several related cases:

 

The case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard. [Citations.] We have recognized the ‘difficulty and peril inherent in such a task,’ and have discouraged such ‘ “experiments”’ by courts and prosecutors. [Citation.] We have stopped short, however, of categorically disapproving the use of reasonable doubt analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-case basis.

The prosecutor’s argument was as follows:

 

“Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is on the [referring to overhead image of California] Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable’s handprints in the cement. You have a fourth witness who comes in and says, I have been to that state.

 

“What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don’t want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt.” (People v. Centeno, supra, 60 Cal. 4th at 665-66.)

 

The prosecutor then compared the defense and prosecution evidence in the following argument:

 

“Is it reasonable to believe that a shy, scared child who can’t even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?”

 

She continued:

 

“Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he’s on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he[‘s] good for it? That is what is reasonable. He’s good for it.” (Ibid.)

In its initial analysis of this argument the CSC observed:

 

Courts have repeatedly cautioned prosecutors against using diagrams or visual aids to elucidate the concept of proof beyond a reasonable doubt. (See, e.g., People v. Medina (1995) 11 Cal.4th 694, 744–745 (Medina); People v. Otero (2012) 210 Cal.App.4th 865, 874 (Otero); People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269 (Katzenberger)), yet these arguments persist. (Ibid.)

 

In Medina, supra, 11 Cal.4th 694, the prosecutor’s diagram depicted two horizontal lines, one labeled “ ‘100 percent certainty’ ” and a second line beneath it labeled “ ‘beyond a reasonable doubt.’ ”(Id. at p. 744.) While referring to the diagram the prosecutor urged the jurors to not hold the prosecution to the higher standard, but rather to the “ ‘lower’ ” standard. Despite cautioning against the prosecutor’s “attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph or chart.” (Id. at p. 745.) the CSC ultimately concluded that no prejudicial misconduct was shown because the prosecutor’s remarks were made before evidence was received and formal instructions given. (Ibid.)

 

Katzenberger, supra, 178 Cal.App.4th 1260, disapproved an argument similar to the one made in Centeno. Using a slide show to display pieces of a puzzle which was “immediately and easily recognizable as the Statue of Liberty” (id. at p. 1264), even though two pieces that would have shown part of the statue’s face and the torch were missing. (Id. at pp. 1264–1265). The prosecution argued: “[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces of the [sic] it.” (Id. at p. 1265.) The appellate court concluded that the presentation misrepresented the standard of proof because it invited the jurors to guess or jump to a conclusion without considering all of the evidence, an approach “completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.) Despite finding the error harmless the reviewing court “caution[ed] prosecutors who are tempted to enliven closing argument with visual aids that using such aids to illustrate the ‘beyond a reasonable doubt’ standard is dangerous and unwise.” (Ibid.)

 

Similarly Otero, supra, 210 Cal.App.4th 865, disapproved the prosecutor’s use of a diagram similar to the one used in Centeno to illustrate proof beyond a reasonable doubt.

 

In Centeno (id. at p. 669) the CSC expressed its agreement with with Katzenberger and Otero:

 

The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors’ own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion.

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No Sua Sponte Duty To Instruct On Defense Theory That Negates An Element Of The Offense; IAC For Failure To Request Defense Theory Instruction

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People v. Hussain (2014) 231 Cal. App. 4th 261, 269-72, extended the holding of People v. Anderson (2011) 51 Cal.4th 989, 998 [trial courts do not have a duty to instruct sua sponte on the defense of accident] to a situation where the defendant relied claim of right to negate the felonious intent to steal necessary for conviction of theft or robbery. “Stated simply, a claim of right to take disputed property negates the criminal intent necessary for theft. [Citation.]” (Barnett v. State Farm General Ins. Co. (2011) 200 Cal.App.4th 536, 544; see also People v. Tufunga (1999) 21 Cal.4th 935, 938.) Accordingly, Hussain concluded that the rationale of Anderson applies with equal force to any defense which negates an element of the offense including claim of right:

 

Since the claim of right defense, like accident or mistake of fact, serves only to negate the mental state required for grand theft, under Anderson the trial court had no duty to instruct sua sponte on it. Absent a request from either counsel, the trial court did not err in failing to instruct with CALCRIM No. 1863.

(Hussain, supra, at 269, see also People v. Lawson (2013) 215 Cal.App.4th 108, 117 [“the rationale of Anderson is applied with equal force to the defense of mistake of fact, or any other defense that operates only to negate the mental state element of the crime.”].)

 

Despite rejecting the appellate claim Hussain nonetheless reversed the conviction based on a claim of ineffective assistance of counsel:

 

Counsel’s failure to request an instruction on the key point of his client’s defense [e.g., CC 1863], which would have supported his argument, deprived defendant of his constitutional right to effective assistance of counsel and requires reversal of his conviction.

 

Hussain, supra, 231 Cal App. 4th at 272.

 

PG V(A)  Sua Sponte Duties

PG V(A)(2)  Duty to Instruct on General Principles, Elements and Theories

PG V(A)(6)  Duty To Instruct On Defenses

PG V(K) Instruction on Inconsistent Defenses.

 

 

 

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Substantial Evidence Of Guilt Does Not Cure Instruction That Omits Or Misstates An Element Of The Charged Offense

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As with the total failure to instruct on an element of the charge, misinstruction on an element warrants reversal if “the jury could have reasonably concluded that the prosecution failed to prove [the element] beyond a reasonable doubt ….” (People v. Wilkins (2013) 56 Cal. 4th 333, 350-51.) This requires the reviewing court to apply the Chapman (Chapman v. California (1967) 386 U.S. 18) standard of prejudice as specified by the United States Supreme Court in Neder v. U.S. (1999) 527 U.S. 1, 15-17. (See People v. Mil (2012) 53 Cal.4th 400, 417; People v. Sandoval (2007) 41 Cal.4th 825, 838; see also Premo v. Moore (2011) 562 U.S. 115, 131 S. Ct. 733, 744, 178 L. Ed. 2d 649.)

 

Under Neder the failure to submit an element of the crime to the jury may be found harmless beyond a reasonable doubt (per Chapman) “if the evidence supporting the [element] is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citing and quoting Neder].” (People v. French (2008) 43 Cal.4th 36, 53; People v. Ortiz (2002) 101 Cal.App.4th 410, 415-16 [“if no rational jury could have found the element unproven, the error is harmless beyond a reasonable doubt . . .”]; compare People v. Cross (2008) 45 Cal.4th 58, 70, Baxter, J., concurring [Defendant did not claim that the record “contains evidence that could rationally lead to a contrary finding.”].) In other words, this Court “must ask whether the record contains evidence that could rationally to a contrary finding with respect to the omitted element.” (Neder v. U.S., supra, 527 U.S. at 19; see also People v. Sandoval, supra, 41 Cal.4th at 838.)

 

Accordingly, the Chapman/Neder standard does not authorize a finding of harmless error simply because the evidence of guilt is “substantial” or “legally sufficient” to convict the defendant. For example, People v. Mil, supra, 53 Cal.4th 400 overturned the Court of Appeal’s decision finding misinstruction on the reckless indifference element of the special circumstance because the appellate court focused on whether there was substantial evidence of the defendant’s reckless indifference to human life, rather than on whether the court could conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error:

 

Although we agree that this evidence would be sufficient to sustain a finding of reckless indifference on appellate review, under which we would view the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of any facts the jury might reasonably infer from the evidence [citation], our task in analyzing the prejudice from the instructional error is [to decide] whether any rational fact finder could have come to the opposite conclusion. (Id. at p. 418.)

 

 

And, People v. Pearson (2012) 53 Cal. 4th 306, 323-324 utilized the same reasoning to reject the Attorney General’s argument that the instructional error was harmless due to “overwhelming” evidence of the missing element of intent to kill:

 

Nor do we agree with the Attorney General that the error was harmless beyond a reasonable doubt because the evidence of defendant’s intent to kill was overwhelming. While the evidence was legally sufficient to support a finding defendant intended to kill the victim had the jury made such a finding, defendant’s intent was subject to substantial factual dispute at trial. Given the evidence of defendant’s intoxication and the conflicting narratives, in testimony and prior statements, of what defendant personally did to the victim, it was a live issue for the jury whether he acted with the intent to kill her or merely with reckless indifference to her life, the distinction erroneously blurred in the instruction. We cannot say beyond a reasonable doubt that the jury, if correctly instructed, would have found defendant acted with the intent to kill.

 (See also People v. Beaver (2010) 186 CA4th 107, 124-25 [The error in omitting elements of the charge could was not harmless because “even if there was evidence in the record to support [the elements of theft by false pretenses], the jury was never called upon to determine if they had been established beyond a reasonable doubt.”

 

In sum, the Chapman/Neder rule requires the reviewing court to conduct a strict and specific analysis before declaring an elemental instructional error harmless. Without such a rule the reviewing court would be substituting its judgment of the facts for that of jury. This would, of course, drastically compromise the Sixth Amendment right to trial by jury: “[E]ven if the prosecution’s evidence on the omitted element is overwhelming … [the reviewing court] cannot judge the defendant guilty; that role is reserved for the jury. [Citation.] ‘[N]o matter how clear evidence may be, the Sixth amendment requires that the jury, not the judge, must find the facts necessary to decide [the] element[s] of a crime beyond a reasonable doubt.’ [Citations.]“ (Harmon v. Marshall (9th Cir. 1995) 57 F3d 763, 765 [pre-Neder decision].)

FORECITE PRACTICE GUIDE: PG X(B)(14)

FORECITE PRACTICE GUIDE: PG X(C)(1)(b)

 

 

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Aider And Abettor: Natural And Probable Consequences – Right To Pinpoint Instruction On Defense Theory That Non-Target Crime Was The Independent Product Of The Perpetrator’s Mind Outside Of, Or Foreign To, The Common Design

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People v. Smith (2014) 60 Cal. 4th 603 eliminated an element of the natural and probable consequences liability which the prosecution was required to prove by CC 402. However, in so doing Smith provided a basis for a defense pinpoint instruction relating the natural and probable consequences doctrine to evidence that the perpetrator of the non-target crime acted independently.

Based on CC 402 [para 6] the jury in Smith was instructed as follows:

“If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.” (Id. at p. 613.)

The CSC disapproved this language because “the prosecution … need not … prove the nontarget offense was not committed for a reason independent of the common plan to commit the target offense.” (Id. at p. 614.)

In reaching this conclusion the Court emphasized that the natural and probable consequences doctrines of conspiracy and aiding and abetting are not interchangeable. For conspiracy liability to extend to nontarget offenses the “connection between [the target and nontarget offenses must not be] a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.” (Id at pp. 614-15; internal punctuation and citations omitted.) However, that limitation on conspirator liability does not apply equally to an aider and abettor:

If the prosecution can prove the nontarget crime was a reasonably foreseeable consequence of the crime the defendant intentionally aided and abetted, it should not additionally have to prove the negative fact that the nontarget crime was not committed for a reason independent of the common plan. [Citations.]” (Id at 617.)

Notwithstanding this conclusion the Smith emphasized that evidence of the perpetrator’s independent purpose may still be relevant to a defense theory that the prosecution did not prove that the non-target offense was reasonably foreseeable:

To be sure, whether an unintended crime was the independent product of the perpetrator’s mind outside of, or foreign to, the common design may, if shown by the evidence, become relevant to the question whether that crime was a natural and probable consequence of the target crime. In a given case, a criminal defendant may argue to the jury that the nontarget crime was the perpetrator’s independent idea unrelated to the common plan, and thus was not reasonably foreseeable and not a natural and probable consequence of the target crime. [Emphasis in original.] (Ibid.)

Accordingly, as with other defense theories that pinpoint evidence upon which the jurors may rely to conclude that the prosecution has not met its burden of proving an essential element of the charge (e.g., intoxication to negate mental state or intent, provocation to negate deliberation, return of stolen property to negate intent to steal, etc.) the defense should have the right, on request, to a defense theory instruction on the perpetrator’s independent purpose. The right to such an instruction has been recognized by the CC committee:

A defendant is entitled, on request, to a nonargumentative instruction that directs attention to the defense’s theory of the case and relates it to the state’s burden of proof. [Citation to People v. Sears (1970) 2 Cal.3d 180, 190 [error to deny requested instruction relating defense evidence to the element of premeditation and deliberation].] Such an instruction is sometimes called a pinpoint instruction. “What is pinpointed is not specific evidence as such, but the theory of the defendant’s case. It is the specific evidence on which the theory of the defense ‘focuses’ which is related to reasonable doubt. [Citations.] ” (Judicial Council Of California Criminal Jury Instruction 220, Judicial Council Of California Criminal Jury Instruction 220, Related Issues.)

Moreover, a number of established CC instructions provide templates for requesting such a defense theory instruction. Examples of how these instructions could be adapted to evidence of the perpetrator’s independent purpose include the following:

Sample Instruction [CC 3426 Format]:

Consider all the circumstances, including any evidence that the [alleged] _________________ <non-target crime. e.g., murder> was _____________’s <name of alleged perpetrator> independent idea unrelated to the common plan in deciding, if you can, whether a reasonable person in the defendant’s position would have known that the commission of the [alleged] _________________<non-target offense> was a natural and probable consequence of the commission of the [alleged] _______________ <target offense>.

 

Sample Instruction [CC 522 Format]:

 

If you conclude that the defendant committed the [alleged] _____________<target offense> consider all the circumstances, including any evidence that the [alleged] _________________ <non-target crime. e.g., murder> was _____________’s <name of alleged perpetrator> independent idea unrelated to the common plan in deciding, if you can, whether a reasonable person in the defendant’s position would have known that the commission of the [alleged] _________________<non-target offense> was a natural and probable consequence of the commission of the [alleged] _______________ <target offense>.

 

Xrefs:

F 402.5 Natural And Probable Consequences—Elements
F 402.6 Natural and Probable Consequences—Defense Theories
F403.5
F403.6

F 402.6 Inst 1
F 403.6 Inst 1

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CALCRIM Is Not The Law And Is Not Sacrosanct

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“Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of standard jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841; People v. Thompkins (1987) 195 Cal.App.3d 244, 250 [rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations].)
 
Hence, the fact that the CALCRIM instructions are recommended by the Judicial Council (Rule 855(e)) and in general use does not make them correct and/or sacrosanct. For example, People v. Smith (2014) 60 Cal. 4th 603 concluded that a portion of CC 402 which had been extant for many years was an incorrect statement of the law. In so doing the Supreme Court warned that “[t]he mere fact that [a] sentence is in CALCRIM does not make it legally correct.” (Id. at p. 614.) The Court also admonished that “[j]ury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. [Citation].” (Ibid., see also People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7; People v. Salcido (2007) 149 CA4th 356, 366.)
 
In the final analysis, “the trial court has both the duty and the discretion to control the conduct of the trial. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 346.) Accordingly, the Judicial Council has no binding authority over the trial judge as to jury instructions. (See PC 1093(f) [judge may give jurors instruction which he or she “deem[s] necessary for their guidance …”].)
 
In sum, “the fact that pattern jury instructions are available should not preclude a judge from modifying or supplementing a pattern instruction to suit the particular needs of an individual case …. The thrust of such objection goes not to the use of pattern instructions themselves, but rather to the practice of rote reliance upon such instructions without modification, a practice that may develop simply by virtue of their existence …. [P]attern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case.” (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 pp. 236-237.)
 
Finally, when reviewing any CALCRIM instruction one should be cognizant of the danger that CALCRIM’s commitment to “plain English” instructions may in some situations result in incomplete or inaccurate statements of the law. For example, the CALCRIM Committee is not adverse to unilaterally replacing statutory language with its own “juror friendly” interpretation of the language. (See, e.g., FORECITE F 1820.6 Inst 1; F 1821.5 Inst 2.) As one text has observed, “substituting a word of a statute just to make an instruction more juror-friendly maybe be going too far.” (Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2014-2015), § 7:3, Authors’ Notes, p. 434.)
 

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Aider And Abettor: Natural And Probable Consequences – Unanimity As To Commission Of Nontarget Offense

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The majority opinion in People v. Smith (2014) 60 Cal. 4th 603 concluded that the requirement of juror unanimity as to all essential elements of the charge does not apply to commission of the nontarget offense alleged under the natural and probable consequences doctrine:

 

 The prosecution theory was that Littleton was the killer. But exactly who shot and killed the two victims was not entirely clear….Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged crime has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder. … “Once the discrete event is identified, for example, the killing of a particular human being, the theory each individual juror uses to conclude the defendant is criminally responsible need not be the same and, indeed, may be contradictory.” [Citation.] It suffices if the jury unanimously agrees that the prosecution has proven beyond a reasonable doubt every element necessary to establish guilt of a discrete crime. (Id. at pp 617-18.)

 
However, as Justice Lui persuasively argued in his concurring opinion, commission of the nontarget offense is an essential element of natural and probable consequence liability:

 

 Today’s extension of the Santamaria rule is problematic because an essential element of proving that a defendant committed murder under a natural and probable consequences theory is valid proof that one (or more) of the defendant’s confederates committed murder. (See People v. Prettyman (1996) 14 Cal.4th 248, 267 [natural and probable consequences liability requires proof that “the defendant’s confederate committed an offense other than the target crime(s)” (italics omitted)].) Our case law has always held—and today’s opinion does not dispute—that independent and satisfactory proof of the nontarget offense is itself a necessary element of proving a defendant’s vicarious liability for that offense under a natural and probable consequences theory. A finding by six jurors that Littleton (and no one else) committed murder, together with a finding by six other jurors that Moody (and no one else) committed murder, does not add up to a valid finding that anyone committed the nontarget offense of murder in this case. We have never said that murder can be proven that way, and we should not adopt a special rule here. It is no answer to say that “[t]he jury certainly had to find that someone committed murder.” (Maj. opn., ante, 180 Cal.Rptr.3d at p. 113, 337 P.3d at p. 1170.) To say the jury found that “someone committed murder” is a conclusory play on words. There is no finding of “murder” under the law simply because each of twelve jurors believes “someone” killed with malice. Even if Smith’s liability for murder does not depend on whether Littleton or Moody (or anyone else) would be convicted of murder if tried in a separate proceeding (cf. People v. Wilkins (1994) 26 Cal.App.4th 1089, 1093–1096 it is essential that the jury in this proceeding find valid proof of the nontarget offense of murder. As a point of contrast, it would not matter whether the jury could determine who killed each victim if the jury had found that all possible shooters acted with malice aforethought toward Hunt and McCarthy. In that scenario, each possible shooter would have been either a perpetrator or an aider and abettor of the murders and, as such, would have been liable for murder, no matter who actually shot each victim. But the jury instructions in this case did not require any such finding as to all possible shooters, and the record does not compel such a finding beyond a reasonable doubt. In sum, a finding by each member of the jury that someone within the group of possible shooters killed the victims with malice—without any  agreement on the shooter’s identity or a unanimous finding that all possible shooters acted with malice—is not valid proof that anyone committed the nontarget offense of murder. Without such proof, an essential element of Smith’s liability for murder under a natural and probable consequences theory is missing.

People v. Smith (2014) 60 Cal. 4th 603, 622-23, 337 P.3d 1159, 1172 [Emphasis added]

 
Strategy Note: Until this question is definitively resolved in federal court counsel may wish to request a unanimity instruction in such situations under clearly established USSC precedent which mandates that the prosecution prove every essential element of the charge. (Apprendi v. New Jersey (2000) 530 U.S. 46; In re Winship (1970) 397 U.S. 358.) “Failure to submit to the jury the essential elements of the crime is ‘fundamental’ error.”  (Screws v. United States (1945) 325 U.S. 91, 107.)
 

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Mens Rea For Embezzlement: Intent To Temporarily Deprive

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People v. Casas (2010) 184 Cal. App. 4th 1242, 1247, concluded that the trial court correctly modified CC 1808 to instruct the jury that “an intent to temporarily deprive was sufficient to prove the mens rea of the crime of embezzlement.” Although not fully clear from the Casas opinion, the trial court’s modification was probably merely adding the bracketed portion of CC 1808 which provides that “An intent to deprive the owner of property, even temporarily, is enough.”