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Death Penalty: Sympathy for Defendant’s Family — Instruction and Argument

CC 763 includes the following optional clarifications regarding the jurors’ consideration of sympathy for the defendant’s family in a death penalty case.

[Although you may consider sympathy or compassion for the defendant,
you may not let sympathy for the defendant’s family influence your
decision. [However, you may consider evidence about the impact the
defendant’s execution would have on (his/her) family if that evidence
demonstrates some positive quality of the defendant’s background or
character.]]

The CC Bench Notes re: Instructional Duty explains the use of these optional instructions as follows:

On request, give the bracketed sentence that begins with “You may not let sympathy for the defendant’s family.” (People v. Ochoa (1998) 19 Cal.4th 353, 456 [79Cal.Rptr.2d 408, 966 P.2d 442].) On request, give the bracketed sentence that begins with “However, you may consider evidence about the impact the defendant’s
execution.” (Ibid.)

These optional instructions and the supporting Bench Note are erroneous.

Ochoa did not hold that the instructions proposed by CC are correct. The Court merely concluded that there was no federal constitutional violation because neither the jury instructions nor the prosecutor’s argument — to which defense counsel did not object — prevented the jury from considering evidence relevant to Ochoa’s character or the circumstances of the offense charged. (Id. at 506.)

First, the court noted that the jury heard evidence of the emotional impact of a possible death sentence on Ochoa’s family. Id. at 505–06.) Further, the court examined the other instructions the trial court gave regarding what constituted a “mitigating factor,” noting that those instructions “did not forbid him to argue to the jurors to take sympathy for his family into account.” Id. at 504. Specifically, the court observed that the trial court instructed the jury that it could consider “unlimited” mitigating factors and explained that the “[m]itigating factors provided in the instructions [were] merely examples of some of the factors” the jury could consider in deciding whether a death sentence was warranted.” (Id.)

Thus, Ochoa does not authorize an affirmative instruction precluding the jurors from considering sympathy for the defendant’ family.

Moreover, since the decision in Ochoa the USSC has approved the ‘family sympathy defense’ as a competent defense penalty strategy.” (Cullen v. Pinholster (2011) 563 U.S. 170, 193-194.) Accordingly, the above quoted CC instruction which precludes consideration of sympathy for the defendant’s family violates the defendant’s state and federal constitutional rights to instruction on a valid defense theory.

“[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US 58, 63; see also Keeble v. U.S. (1973) 412 US 205, 208.)

Moreover, “a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor….” (People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; see also Washington v. Texas (1967) 388 US 14, 19.) A failure to instruct on the defense theory encompassed by the defendant’s evidence undermines the very constitutional rights which allow the evidence to be presented to the jury. (See e.g., U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case.)

Similarly, under state law:

“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.  The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (94) 8 C4th 548, 572; see also People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”].)

In other words, absent an appropriate instruction, the right to present evidence is entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202; see also Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-42.) Thus, when the defendant relies on the valid defense theory of sympathy for the defendant’s family it would be erroneous to deny a defense theory of the case instruction and/or to affirmatively instruct the jury — or allow the prosecutor to argue — that it cannot consider this theory.

Blog

Defendant Has Sixth Amendment Right Of Autonomy Over The Defense

In People v. Bloom (Apr. 21, 2022, S095223) [pp. 34-35] Bloom was charged with killing 3 people. He admitted killing one but repeatedly objected to his lawyer admitting that he killed the other 2 and relying on a diminished mens rea defense to argue that Bloom was only guilty of manslaughter. Despite Bloom’s objections, the judge allowed defense counsel to argued that Bloom killed the three victims, but the killings were manslaughter, not first degree murder. On appeal Bloom argued that counsel’s concessions violated his Sixth Amendment right of autonomy over the defense under McCoy v. Louisiana (2018) 584 U.S. ___ [138 S.Ct. 1500].

In McCoy, the defendant shot and killed his estranged wife’s mother, stepfather, and son in their home. (McCoy, supra, 138 S.Ct. at pp. 1505-1506.) McCoy was indicted on three counts of first degree murder but maintained he was not involved in the killings because he was out of state and the victims were instead killed by corrupt police officers following a drug deal. (Id. at p. 1506.) In light of “overwhelming” evidence tying his client to the murders, McCoy’s counsel decided the best strategy to avoid a death sentence was to concede McCoy’s guilt and appeal to the jury’s mercy in view of McCoy’s” ‘serious mental and emotional issues'” (id. at p. 1507). McCoy, however, was” ‘completely] oppos[ed] to [his attorney] telling the jury that [he] was guilty of killing the three victims.'” (Id. at p. 1506.) The judged ruled that it was counsel’s role to” ‘make the trial decision'” about whether to concede his client’s guilt. Accordingly, counsel conceded McCoy’s guilt.

The United States Supreme Court held that counsel’s concession violated McCoy’s right, grounded in the Sixth Amendment, to “decide that the objective of the defense is to assert innocence.” (McCoy, supra, 138 S.Ct. at p. 1508.)

In Bloom, the CSC concluded “that McCoy forbids counsel from conceding guilt of the charged offense or lesser included offenses despite the client’s wish to maintain innocence. ” People v. Bloom (Apr. 21, 2022, S095223) [pp. 40]

Blog

DNA: Strmix® Probabilistic Genotyping Technology Satisfies The Kelly Standard (People v. Davis (2022) 75 Cal.App.5th 694)

  • –STRmix® is generally accepted in the relevant scientific community

 

  • –Court could rely on validation witness with vested interest in the technology

 

  • –Proprietary software can achieve general acceptance without disclosure of source code
  • –Technology with subjective component can be generally accepted

 

  • –STRmix® not vulnerable to Evidence Code § 352 objection

 

  • –Not an improper expert opinion that the defendant is guilty
  • -CC 332 permitted jury to give whatever weight to and draw whatever conclusions from DNA’s expert testimony it deemed appropriate

Re: DNA generally see also FORECITE:

 

Blog

Meaning Of LWOP: Strategy And Tactics

Simmons v. South Carolina, 512 U.S. 154 (1994), holds that a defendant is entitled to a penalty-phase jury instruction that (if true) life-sentenced prisoners will never be eligible for parole.  For many years, the Arizona Supreme Court held that Simmons does not apply in Arizona because LWOP prisoners are entitled to apply for executive clemency.  The ASC was summarily reversed on this point in Lynch v. Arizona, 578 U.S. 713 (2016).

 

Moreover, the instruction is required notwithstanding the hypothetical possibility that a future law will create parole eligibility that does not now exist.  Ramdass v. Angelone (2000) 530 U.S. 156, 171 (plurality opinion).  (Justices Thomas and Alito dissenting.)

 

Nevertheless, the CSC has consistently rejected Simmons arguments:

 

“We repeatedly have held, however, that trial courts are not required—either upon request, or on the court’s own motion—to instruct that a sentence of life without possibility of parole will inexorably be carried out, because such an instruction would be an incorrect statement of the law. [Citations.] We likewise have rejected the suggestion that Simmons v. South Carolina (1994) 512 U.S. 154, and its progeny mandate such an instruction. [Citations.]” ( People v. Whalen (2013) 56 Cal.4th 1, 88.) We have held that CALJIC No. 8.84, which was given in this case, adequately informs the jury that a defendant sentenced to life without the possibility of parole is ineligible for parole. (People v. Duenas (2012) 55 Cal.4th 1, 28.) We are not persuaded to revisit these prior holdings.

People v. Adams (2014) 60 Cal.4th 541, 581

Despite the CSC’s consistent rejection of such instructions there remain important strategic and tactical matters to consider.

  1. Strategic Considerations. A complete explanation of the meaning of LWOP would seem to require discussion of the Governor’s commutation powers and the Legislature’s power to revise the sentencing statute. So far the courts have been unwilling to authorize an instruction that LWOP means the defendant will never be released. (See People v. Cox (1991) 53 C3d 618, 680-81.) Since most instructions which fail to mention the Governor’s commutation powers would at least imply that the defendant will never be released, it may be necessary for counsel to agree that the commutation power be addressed in the instruction. The only way a sentence of life without parole or a sentence of death may ever be reduced is by an act of Executive Clemency by the Governor of California [upon recommendation of a majority of the California Supreme Court]. For example, in People v. Chessman (1951) 38 C2d 166, 189-90, it was held that the jury was properly instructed that release from an LWOP sentence could occur by gubernatorial pardon or commutation or by legislative revision of the sentencing statute. Obviously the decision of whether to agree to such an instruction requires consideration of the potential prejudicial effect of referring to the Governor’s commutation power (see People v. Cudjo (1993) 6 C4th 585, 630-33) against the countervailing prejudice accruing from the jurors misunderstanding about the power of the courts and/or parole authorities to release the defendant after serving only 10 to 20 years. Given the apparent pervasiveness of this misunderstanding and its substantial impact on the verdict, this matter warrants close attention. Note also that this issue should be considered in light of how counsel will argue this point to the jury. It may be preferable to allow jury consideration in order to argue that the chance of Executive Clemency is remote. (See below.)
  2. Whether Jury May Consider Likelihood Of Executive Clemency. People v. Ramos (1984) 37 C3d 136, 159 fn 12 holds that the jury may not consider the possibility of Executive Clemency. This could justify instructing the jury that “You must not consider the possibility of Executive Clemency in determining the appropriate sentence.” However, it could be argued under the logic of Simmons, which suggests that the jury should have a full and accurate understanding of the sentencing alternatives, that the jury should consider the unlikelihood of Executive Clemency. (See Gallego v. McDaniel (9th Cir. 1997) 124 F3d 1065 [failure of commutation instruction to explain the remoteness of executive clemency for a life sentence was constitutional error].)
  3. Argument As To Unlikelihood Of Executive Clemency. Counsel may wish to argue that Simmons allows the jury to consider the likelihood or unlikelihood of Executive Clemency in order to permit argument to the jury on this point. The jurors will likely be aware of the severe political consequences which attach to the release of any violent offender and on this basis they may be brought to understand just how remote Executive Clemency would be in a special circumstance first degree murder case. [Whether evidence could or should be brought on the likelihood of Executive Clemency is another matter which may warrant consideration.]
  4. Whether To Broach Public Misconception As To LWOP On Voir Dire–CAVEAT: A voir dire discussion of juror misconceptions about the meaning of LWOP may result in the entire panel learning about the governor’s commutation power.
  5. Argument On Nature Of LWOP In Lieu Of Instruction. People v. Gutierrez (2002) 28 C4th 1083 stated that counsel may properly argue “the full nature of a sentence of life in prison without the possibility of parole.” This may be a better approach than a jury instruction which could lessen the sense of personal responsibility the jurors should have, particularly given the fact that the defense argues last in a penalty trial.
  6. Instruction As To Meaning Of LWOP: Sample Argument When Instruction Refused. People v. Holt (1997) 15 C4th 619, 689 rejected the defendant’s argument that the term life without possibility of parole is a technical term requiring sua sponte definition by the trial court. In so doing, the court quoted with approval the following argument of defense counsel regarding the issue:

“‘[the defendant] is going to spend the rest of his life in prison and life without parole means what it says …,’ Counsel also told the jury that notorious murderers who had received parole hearings did so under the old law, under the present law defendant would not have parole hearings and ‘[h]e will not get out.’”

Accordingly, under the authority of Holt, counsel should be permitted to make such arguments, especially if defendant’s request to define life without parole is rejected. (See e.g., FORECITE PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction

 

See also FORECITE F 8.84c Juror Misconceptions About Parole From Pre-1978 Cases.

Blog

March 2022 CALCRIM Revisions with Selected FORECITE COMMENTARY

Effective March 21, 2022, the CALCRIM committee changed the instructions set forth below.

 

See https://jcc.legistar.com/View.ashx?M=F&ID=10537506&GUID=0581B025-AB47-4E81-9694-89A8C8F8B587

 

 

 

Instruction Number

  

Instruction Title
 

N/A

  

User Guide
 

224

  

Circumstantial Evidence: Sufficiency of Evidence
 

250

  

Union of Act and Intent: General Intent
 

253

  

Union of Act and Intent: Criminal Negligence
 

315

  

Eyewitness Identification
 

331

 Testimony of Person With Developmental, Cognitive, or Mental Disability
 

372

  

Defendant’s Flight
 

NEW 378

  

Consciousness of Guilt: General
 

505

  

Justifiable Homicide: Self-Defense or Defense of Another
 

510

  

Excusable Homicide: Accident
 

511

  

Excusable Homicide: Accident in the Heat of Passion
 

523

  

First Degree Murder: Hate Crime
 

524

  

Second Degree Murder: Peace Officer
 

571

 Voluntary Manslaughter; Imperfect Self-Defense or Imperfect Defense of Another – Lesser Included Offense
 

736

  

Special Circumstances: Killing by Street Gang Member
 

860, 862, 863, 875

  

Great Bodily Injury Instructions

 

 

Instruction Number

  

Instruction Title
 

890

 Assault with Intent to Commit Specified Crimes (While Committing First Degree Burglary)
 

982 & 983

  

Brandishing Firearm or Deadly Weapon
1000, 1001, 1002, 1003, 1004, 1005, 1015, 1016, 1030, 1031, 1045, 1046, 1060, 1123  

Sex Offenses
 

1200, 1201, 1203, 1215

  

Kidnapping
1350, 1351, 1352, 1354, 1355  

Hate Crimes
 

1400 & 1401

  

Gang Instructions
 

1600

  

Robbery
 

1830

  

Extortion
 

2220

  

Driving With Suspended or Revoked Driving Privilege
 

2306

 Possession of Controlled Substance with Intent to Commit Sexual Assault
 

2503

  

Possession of Deadly Weapon With Intent to Assault
 

2514

  

Possession of Firearm by Person Prohibited by Statute: Self-Defense
 

2542

  

Carrying Firearm: Active Participant in Criminal Street Gang
 

2670 & 2672

  

Lawful Performance
 

2720 & 2721

  

Assault by Prisoner
 

NEW 2749

 Bringing or Sending Controlled Substance or Paraphernalia into Penal Institution
 

NEW 3010

 Eavesdropping on or Recording a Confidential Communication Using an Electronic Device
 

3100 & 3101

  

Prior Conviction
 

3130

  

Personally Armed With Deadly Weapon
 

3145

  

Personally Used Deadly Weapon
 

3160

  

Great Bodily Injury
 

3404

  

Accident
 

3414

  

Coercion
 

3470

  

Right to Self-Defense or Defense of Another (Non-Homicide)

 

 

The following is an overview of some of the proposed changes.

 

User Guide

 

Added the following:

 

“The California Supreme Court acknowledged CALCRIM’s status as the state’s official pattern jury instructions in People v. Ramirez (2021) 10 Cal.5th 983, 1008, fn.5.”

 

FORECITE Commentary.

But see PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions., see also:

 

CALCRIM Is Not The Law And Is Not Sacrosanct
January 27th, 2015

 

CALCRIM Is Not the Law
June 3rd, 2021

 

Circumstantial Evidence: Sufficiency of Evidence (CALCRIM No. 224)

 

CALCRIM added a new entry in the Authority section of CC 224 entitled “‘Innocence’ Means Not Guilty of the Charged Crime” with a citation to People v. Doane (2021) 66 Cal.App.5th 965, 976–977. The committee also moved an existing citation for People v. Wade (1995) 39 Cal.App.4th 1487, 1492 to this new entry.

 

FORECITE Commentary.

FORECITE has long identified potential concerns with use of the term “innocence” in instructions to the jury, (see e.g., F 224 Inst 1 Circumstantial Evidence: Guilt Vs. Innocence

However, by making this clarification in the authority section but not in the instructional language the CC Revision does nothing to eliminate potential juror confusion from use of the term “innocence.” At a bare minimum, a clarifying instruction should be given on request.

 

Eyewitness Identification (CALCRIM No. 315)

This instruction poses several questions for a jury to consider when deciding whether eyewitness testimony was truthful and accurate. One of these questions is: “How certain was the witness when he or she made the identification?” In People v. Lemcke (2021) 11 Cal.5th 644, 647 [278 Cal.Rptr.3d 849, 486 P.3d 1077], the California Supreme Court held that the certainty factor embodied in this question needed to be reevaluated because the instruction “does nothing to


1 Rule 10.59(a) states: “The committee regularly reviews case law and statutes affecting jury instructions and makes recommendations to the Judicial Council for updating, amending, and adding topics to the council’s criminal jury instructions.”

disabuse jurors” about a common misconception that eyewitness confidence is a reliable indicator of accuracy of an identification. The Court also articulated several factors identified in research that can affect the correlation between witness certainty and accuracy. (11 Cal.5th at 667.) The Court then referred the matter to the Advisory Committee on Criminal Jury Instructions “to evaluate whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy.” (Id. at p. 647.)

 

The committee reviewed other states’ jury instructions on witness certainty and also considered whether, as Lemcke pointed out, highly detailed instructions about witness certainty might further confuse the jury or overcorrect the problem. Ultimately, the committee opted to move the certainty question to the end of the instruction, place brackets around it for optional use, and set forth certain factors the jury should consider in evaluating identification testimony (consistent with Lemcke). The committee also added a bench note to explain when trial courts should give the bracketed language.

 

During the public comment period, the committee reached out to the Criminal Law Advisory Committee (CLAC) and the Appellate Advisory Committee (AAC) for informal feedback. One AAC member observed that the draft appeared to be an appropriate implementation of observations in the Lemcke decision. Two other members suggested additional language for the bracketed paragraph that begins with “A witness’s expression of certainty.” Specifically, one member proposed changing a phrase to read “may or may not” in order to be more neutral; another member suggested adding the phrase “the significance of” in front of the phrase “the witness’s certainty” to clarify what the jury is evaluating. The committee agreed with the suggestion to add the phrase “the significance of.” However, the committee decided not to change the phrase to “may or may not” because the committee felt that this modification would be contrary to the guidance in Lemcke emphasizing that, under most circumstances, witness confidence or certainty is not a good indicator of identification accuracy. A member of CLAC suggested that the bench notes clarify the circumstances under which the bracketed language should not be given. The committee declined to make this suggested change, finding that the bench notes already adequately explain when the language should be given.

The committee also received an extensive public comment from the Office of the State Public Defender, requesting that additional language be included. The committee carefully reviewed the comment but decided that the additional language was unnecessary and overly specific. Instead, the committee added a related issues note about Penal Code section 859.7 to highlight the consideration of police practices employed during an eyewitness identification.

 

FORECITE Commentary.

The committee’s failure to add instructional language addressing the factors set forth in PC 859.7 should not preclude counsel from requesting such language. (See PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions.)

 

Furthermore, even if the requested language is denied, the missing factors may be elevated to instructional status during argument: See F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction; see also PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction

 

 

Testimony of Person With Developmental, Cognitive, or Mental Disability (CALCRIM No. 331) The statutory authority for this instruction is Penal Code section 1127g, which requires that, upon request, the court must instruct the jury about certain factors to evaluate testimony “[i]n any criminal trial or proceeding in which a person with a developmental disability, or cognitive, mental, or communication impairment testifies as a witness.” In People v. Byers (2021) 61 Cal.App.5th 447, 457–458 [275 Cal.Rptr.3d 661], the court upheld the use of this instruction in a case where the witness had a speech impediment. The court noted that this instruction had been previously upheld in People v. Catley (2007) 148 Cal.App.4th 500, 506–508 [55 Cal.Rptr.3d 786] and further determined that Penal Code section 1127g is not limited to dependent persons, disagreeing with People v. Keeper (2011) 192 Cal.App.4th 511, 521 [121 Cal.Rptr.3d 451]. The committee added a bench note pointing out the split in authority between Byers and Keeper and also added Catley to the Authority section.

 

Defendant’s Flight (CALCRIM No. 372); Consciousness of Guilt: General (proposed new CALCRIM No. 378)

In People v. Pettigrew (2021) 62 Cal.App.5th 477, 496 [276 Cal.Rptr.3d 694], the trial court instructed the jury with CALCRIM No. 372 based on the defendant’s two suicide attempts in jail. The court held that it was error to give the flight instruction because the suicide attempts did not constitute substantial evidence of flight. (62 Cal.App.5th at p. 499.) The court further noted that the trial court would have been justified in instructing the jury on the limited use it could make of the defendant’s suicide attempts and proposed that the Advisory Committee on Criminal Jury Instructions “consider drafting a more general instruction that might be used in cases that do not fit within the existing, specific consciousness of guilt instructions.” (Id. at p. 500 & fn. 7.) In response to this suggestion, the committee drafted proposed new CALCRIM No. 378. The committee also added a reference to Pettigrew in the Related Issues section of CALCRIM No. 372 about the meaning of flight.

 

FORECITE Commentary.

The CC Committee failed to respond to Pettigrew’s suggestion that a new instruction addressing consciousness of guilt evidence that is not addressed by the current standard instructions:

Because the courts have held evidence of any type of post offense conduct that tends to prove the defendant’s consciousness of guilt is relevant and may be admissible [Citation] pursuant to rule 2.1050(d) of the California Rules of Court, we respectfully suggest the Judicial Council consider drafting a more general instruction that might be used in cases that do not fit within the existing, specific consciousness of guilt instructions.

People v. Pettigrew (2021) 62 Cal.App.5th 477, 500 fn. 7

 

 

 

Excusable Homicide: Accident (CALCRIM No. 510)

The San Francisco Public Defender’s Office submitted a proposal to harmonize this instruction with Penal Code section 195, which sets forth the statutory definition of excusable homicide. The commenter pointed out that the instruction is written in the conjunctive but the statute is written in the disjunctive. In reviewing the instruction, the committee noted that it appeared to have been originally drafted based, in part, on language in People v. Gorgol (1953) 122 Cal.App.2d 281, 308 (“‘Misfortune’ when applied to a criminal act is analogous with the word ‘misadventure’ and bears the connotation of accident while doing a lawful act”). However, as the commenter pointed out, People v. Garnett (1908) 9 Cal.App. 194, 203–204 [98 P. 247] disapproved of an instruction that was similarly worded to No. 510.2 The Garnett court held: “This instruction is not a clear and correct statement of any principle concerning the law of homicide. It ignores the question as to whether or not the discharge of the pistol was caused by an unlawful act of defendant.” (Id.) The court continued to explain: “Under this instruction defendant would not be relieved of responsibility for results from the accidental discharge of the pistol, if it were accidentally discharged, at the time he was engaged in doing an unlawful act, regardless of whether or not the unlawful act had any connection with the discharge other than in point of time.” (Id. at p. 204.) The committee ultimately determined that the language in Gorgol is not


2 The instruction in Garnett stated: “If you find to a moral certainty and beyond a reasonable doubt that the revolver introduced in evidence in this case was discharged at the time mentioned, and that the defendant was engaged in the commission of an unlawful act at such time, then as a matter of law he will not be relieved from responsibility for any result which may have followed such discharge, even though such revolver was at such time discharged accidentally.” Id. at p. 2

controlling authority for this instruction and redrafted the instruction to accord with the statutory structure and the holding in Garnett.

 

FORECITE Commentary.

See F 510.2 Inst 1-3.

 

 

Sex offense and related instructions (CALCRIM Nos. 890, 1000–1005, 1015–1016, 1030–1031, 1045–1046, 1060, 1123, 1203, 2306)

Assembly Bill 1171 (Stats. 2021, ch. 626) repealed Penal Code section 262 (spousal rape) and amended Penal Code section 261 to expand the definition of rape to include the rape of a spouse, except as specified. This legislation affected 17 instructions, resulting in mostly technical changes.

 

Hate crime instructions (CALCRIM Nos. 523, 1350, 1351, 1352, 1354, 1355)

Assembly Bill 600 (Stats. 2021, ch. 295) amended Penal Code section 422.56 to clarify that “immigration status” is included in the scope of a hate crime based on nationality. The committee conformed the bracketed definition of nationality in these instructions with the revised statutory wording.

 

Gang instructions (CALCRIM Nos. 736, 1400, 1401, 2542)

Assembly Bill 333 (Stats. 2021, ch. 699) amended Penal Code section 186.22 and added Penal Code section 1109. The amendments to Penal Code section 186.22 include revised definitions of “criminal street gang” and “pattern of criminal street gang activity.” The legislation also reduced the types of qualifying predicate offenses and prohibited using the charged offense to establish the pattern of gang activity. The committee incorporated these statutory changes into the instructions and also removed several citations to cases whose holdings were based on the former statute.

 

Robbery (CALCRIM No. 1600)

In People v. Collins (2021) 65 Cal.App.5th 333, 341 [279 Cal.Rptr.3d 407], the prosecutor had repeatedly argued that the law employs an objective standard for evaluating fear. In evaluating the prejudicial effect of these legally incorrect statements, the court noted that the CALCRIM instruction for robbery failed to contradict or refute the statements because the instruction “does not specify whether the victim must himself actually, subjectively be afraid or whether it will suffice if an objective person in the victim’s shoes would have been afraid.” (Id.) As a result, the court suggested that the instruction be clarified to include the specific standard for evaluating fear. In response, the committee added the following language after the definition of fear: “An act is accomplished by fear if the other person is actually afraid. The other person’s actual fear may be inferred from the circumstances.”

 

FORECITE Commentary.

Since the instruction invites the jury to rely on circumstantial evidence as to this one particular issue, the general rules applicable to circumstantial evidence (See e.g., F 225 Inst 1 Circumstantial Evidence To Prove Intent Or Mental State: Inculpatory Versus Exculpatory Mental State; see also People v. Hall (1980) 28 C3d 143, 159 judge may not properly “refuse[] to tailor [an] instruction to the facts of the case.”; see also People v. Falsetta (1999) 21 C4th 903, 924; People v. Fudge (1994) 7 C4th 1075, 1110; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts” ].

 

Extortion by Threat or Force (CALCRIM No. 1830)

An appellate attorney notified the committee that this instruction had not yet been updated to reflect a 2017 legislative amendment that expanded the scope of the crime to include not only “property” but also “other consideration” as the object of extortion. (Sen. Bill 518; Stats. 2017, ch. 518, § 1.) Specifically, the statute was amended to include “other consideration” and defined “consideration” to mean anything of value, including enumerated sexual acts or sexual images. The committee added the language to the instructional elements.

 

Lawful Performance (CALCRIM Nos. 2670 & 2672)

The San Francisco Public Defender’s Office, the Alameda County Public Defender’s Office, and the California Public Defender’s Association submitted a proposal to revise several instructions governing “lawful performance” and police officers’ use of force in light of Assembly Bill 392 (Stats. 2019, ch. 170). This legislation redefined the circumstances for justifiable homicide by a peace officer by restricting the use of deadly force to when the officer reasonably believes that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended. (See Pen. Code, § 835a.) In April 2020, CALCRIM No. 507, Justifiable Homicide: By Peace Officer, was substantially revised in accordance with this legislation. The committee revised Nos. 2670 and 2672 by incorporating language from No. 507 to clarify when a peace officer may use deadly force in the context of determining lawful performance.

 

Bringing or Sending Controlled Substance or Paraphernalia Into Penal Institution

(Proposed new CALCRIM No. 2749)

In People v. Blanco (2021) 61 Cal.App.5th 278, 286–288 [275 Cal.Rptr.3d 558], the court overturned a conviction for Penal Code section 4573 because the jury was not instructed about usable quantity. The opinion pointed out that no standard jury instruction for this offense exists. (61 Cal.App.5th at p. 282, fn. 4.) In response, the committee drafted this new instruction by adapting instructional language from CALCRIM No. 2747, Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution, and CALCRIM No. 2748, Possession of Controlled Substance or Paraphernalia in Penal Institution.

 

FORECITE Commentary.

See Small Amount of Controlled Substance Relevant to Knowledge
November 16th, 2015

 

Eavesdropping or Recording Confidential Communication (new CC 3010)

 

In People v. Lyon (2021) 61 Cal.App.5th 237, 242 [275 Cal.Rptr.3d 581], the defendant was convicted of recording confidential information, in violation of Penal Code section 632(a). On appeal, the defendant argued that the trial court misinstructed the jury on the elements of this offense. The court found no error but invited the Advisory Committee on Criminal Jury Instructions to draft a new instruction for this offense. (61 Cal.App.5th at p. 250, fn. 5.) The committee accepted this invitation and drafted a new instruction. During the comment period, a committee member raised a concern that the draft uses the term “willfully” while the statute uses the term “intentionally.” This member also pointed out People v. Superior Court of Los Angeles County (1969) 70 Cal.2d 123, 132–133 [74 Cal.Rptr. 294, 449 P.2d 230], which held that the statute requires that the defendant intentionally record a confidential communication, and not merely that the defendant intended to make a recording. In response, the committee replaced the word “willfully” with “intentionally” and removed the definition of willfully from the instructional text and the Authority section. The committee also added a Related Issues note that cites People v. Superior Court of Los Angeles County.

 

 

FORECITE Commentary.

Intent is a mental state which includes a knowledge element. See F 250 Inst 2 General Intent: Knowledge Element.  The CC instruction may allow the jury to convict without finding that the defendant knew he/she was recording a confidential communication.

 

Great Bodily Injury (CALCRIM No. 3160)

In People v. Ollo (2021) 11 Cal.5th 682, 684 [279 Cal.Rptr.3d 668, 487 P.3d 981], a jury found true a great bodily injury enhancement, based on the defendant’s act of furnishing drugs to a victim who subsequently overdosed. The Court of Appeal affirmed the finding, holding that, as a matter of law, furnishing drugs to a victim who later overdoses is sufficient for a great bodily injury enhancement. (Id.) The California Supreme Court reversed, holding that “the act of furnishing is not by itself sufficient to establish personal infliction.” (11 Cal.5th at p. 685.) The committee added a related issues note to this instruction that describes the holding in this case.

 

FORECITE Commentary.

Counsel should be able to request that this language be included in the instruction itself to preclude the jury from finding the enhancement based solely on the act of furnishing. (See PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions.)

 

Furthermore, even if the requested language is denied, the missing factors may be elevated to instructional status during argument: See F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction; see also PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction

 

 

 

Coercion (CALCRIM No. 3414)

Assembly Bill 124 (Stats. 2021, ch. 695) added Penal Code section 236.24 to create an affirmative defense for victims of intimate partner violence or sexual violence. The committee expanded this instruction to incorporate the new affirmative defense. In the Authority section, the committee also added a citation to In re D.C. (2021) 60 Cal.App.5th 915, 920 [275 Cal.Rptr.3d 191], which held that Penal Code section 236.23 does not require a showing that the accused was coerced directly by the trafficker to commit the specific crime.

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Judge’s Duty to Draft and Give Instructions Not Included in CALCRIM

In People v. Pettigrew (2021) 62 Cal.App.5th 477, 500 the judge erroneously instructed the jurors that they could consider the defendant’s attempted suicide as flight per CC 372. Instead, because no CC instructions addressed the issue of attempted suicide vis-a-vis consciousness of guilt the judge (or prosecutor who had presented the attempted suicide evidence and relied on it in closing argument) should have drafted an appropriate instruction:

” ‘Whenever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument.’ [Citation to Court Rule 2.1050(e)”].

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Accessory After the Fact Liability Requires Affirmative Conduct Intended to Assist or Encourage a Crime

[Update of this post.] Refusing to Testify After Getting Immunity Is Not Accessory After the Fact
May 5th, 2020

 

In People v. K.M. (In re K.M.) ___ Cal App ___(Feb. 17, 2022, A159962) [pp. 5-7] the prosecution asserted that K.M. was guilty of aiding and abetting a robbery because his very presence at the scene of the crime assisted the perpetrator of the robbery. However, the reviewing court correctly reversed the judgement because there was no evidence that K.M. took any affirmative action that assisted or encouraged the crime.

Per Penal Code 31, “[i]t is well settled that aiding and abetting the commission of a crime require[s] some affirmative action.” ( People v. Weber (1948) 84 Cal.App.2d 126, 130, italics added; accord, People v. Villa (1957) 156 Cal.App.2d 128, 134, [“[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts.”]; see also 1 Witkin, Cal. Criminal Law (4th ed. 2019) Introduction to Crimes, § 100 [“A person cannot be held guilty as a party … if he or she … did not take any affirmative action when it was committed.”].) Accordingly. the word “aids” in PC 31 “refers only to overt or affirmative forms of assistance.” (People v. Partee (2020) 8 Cal.5th 860, 868-69.) [Compare F 400 Note 4 Aiding And Abetting: No Affirmative Duty To Act] [Traditional concepts of aiding and abetting do not apply when a parent has an affirmative duty to act. (E.g., PC 273).]

Penal Code 32 — which defines accessory after the fact liability –“must be interpreted in the same way” as section 31. (People v. Partee, supra.) Thus,”[a] witness’s refusal to testify in the face of a valid subpoena, while punishable as contempt, does not by itself amount to harboring, concealing, or aiding a principal within the meaning of section 32.” (People v. Partee, supra at 873-74.)

“In so holding, we decline to ‘place[ ] California on the extreme outer edge of jurisdictions — indeed, in a group unto itself — concerning the reach of accessory after the fact punishment. [Citation to DCA dissenting opinion].” (Ibid.)

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Imperfect Self Defense Warranted When Defendant’s Account Is Not Totally Delusional

In People v. Schuller (2021) 72 Cal.App.5th 221; 286 Cal. Rptr. 3d 309, 317-19 the Court of Appeal concluded that “the refusal to instruct on imperfect self-defense here was error. While defendant’s testimony included evidence of delusion, his account pertaining to the actual shooting was not entirely delusional and thus provided substantial evidence of an actual but unreasonable belief in the need for self-defense.” (People v. Schuller, supra, 286 Cal. Rptr. 3d at 319.)

The CSC granted review on 1/19/2022 to consider whether “prejudice from this error is to be tested under the Watson test, as the CCA held, or under the Chapman standard of harmlessness beyond a reasonable doubt.”  The order granting review goes on: “Pending review, the opinion of the Court of Appeal, which is currently published at 72 Cal.App.5th 221, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, to choose between sides of any such conflict.”

The “persuasive value” of Schuller is strong on substantive issue of whether the imperfect self-defense instruction is warranted when the defendant’s testimony re: self-defense is not “entirely delusional.”

[T]he Elmore court [People v. Elmore (2014) 59 Cal.4th 121] was careful to note: “[a] defendant who misjudges the external circumstances may show that mental disturbance contributed to the mistaken perception of a threat,” and thus “defendants who mistakenly believed that actual circumstances required their defensive act may argue they are guilty only of voluntary manslaughter, even if their reaction was distorted by mental illness .” ( Id. at p. 146,italics added.)

(People v. Schuller, supra, 286 Cal. Rptr. 3d 309, 318.)

 

Defendant testified that W.T. came at him with a knife, while reaching for the gun on the table, prompting him to shoot in self-defense. While there were delusional components to defendant’s story (the “light” being taken from him, and whether W.T. was Satan), his claim was not entirely delusional like in Elmore … Elmore contemplates that imperfect self-defense is available here: “defendants who mistakenly believed that actual circumstances required their defensive act may argue they are guilty only of voluntary manslaughter, even if their reaction was distorted by mental illness.” [Citation to Elmore, supra, 59 Cal.4th at p. 146].” (italics added by Schuller.)

People v. Schuller, supra, 286 Cal. Rptr. 3d 309, 320

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CC 401 Erroneously Allows the Jurors to Consider the Defendant’s Presence During the Crim or Failure to Prevent the Crime to Find the Actus Reus of Aiding and Abetting Liability

In People v. K.M. (In re K.M.) ___ Cal App ___ (Feb. 17, 2022, A159962) [pp. 5-7] the prosecution asserted that K.M. was guilty of aiding and abetting a robbery because his very presence at the scene of the crime assisted the perpetrator of the robbery. However, the reviewing court correctly reversed the judgement because there was no evidence that K.M. took any affirmative action that assisted or encouraged the crime.

Per Penal Code 31, “[i]t is well settled that aiding and abetting the commission of a crime require[s] some affirmative action.” ( People v. Weber (1948) 84 Cal.App.2d 126, 130, italics added; accord, People v. Villa (1957) 156 Cal.App.2d 128, 134, [“[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts.”]; see also 1 Witkin, Cal. Criminal Law (4th ed. 2019) Introduction to Crimes, § 100 [“A person cannot be held guilty as a party … if he or she … did not take any affirmative action when it was committed.”].) Accordingly. the word “aids” in PC 31 “refers only to overt or affirmative forms of assistance.” (People v. Partee (2020) 8 Cal.5th 860, 868-69.)

Compare F 400 Note 4 Aiding And Abetting: No Affirmative Duty To Act  [Traditional concepts of aiding and abetting do not apply when a parent has an affirmative duty to act. (E.g., PC 273).]

 

CC 401 expresses the actus reus of aiding and abetting in Element 4 as “…words or conduct [which] did in fact aid and abet the perpetrator’s commission of the crime.” However, this language does not necessarily require that the defendant committed “affirmative acts” or actions. The CC language allows reasonable jurors to conclude that the defendant’s presence or failure to prevent the crime conduct which aided the perpetrator.

 

Moreover, the following optional paragraph of CC 401 encourages the jurors to consider the defendant’s presence or failure to prevent the crime. And, this paragraph further suggests that the jurors may combine the defendant’s presence or failure to prevent the crime with other evidence (e.g., of knowledge or intent) to find aiding and abetting even in the absence of affirmative action by the defendant:

 

If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.

 

In sum, CC 401 erroneously allows the jurors to find that the defendant aided and abetted without taking any affirmative action which aided the perpetrator’s commission of the crime.

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Corpus Delicti: Jurors Must Find Independent Evidence As to All Elements of the Charged Offense

The corpus delicti rule requires “an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements” and “allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.”  (People v. Gonzalez ____C5th____, at ____ (Dec. 2, 2021, S163643) [pp. 1 fn. 3]

 

CALCRIM 359, para 1, instructs on this rule as follows:

The defendant may not be convicted of any crime based on (his/her) out- of-court statement[s] alone. You may rely on the defendant’s out-of-court statements to convict (him/her) only if you first conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [Emphasis added.]

 

This instruction is potentially confusing and erroneous. Read literally the instruction could be interpreted to allow conviction of the greater offense based solely on the defendant’s out of court statements provided there is “other evidence [which] shows that … a lesser offense was committed.” Such an interpretation would be erroneous. (See generally People v. Gonzalez, supra;  People v. Frye (1998) 18 C4th 894, 959-60 [quoting CJ 2.72 with approval]; People v. Zapien (1993) 4 C4th 929, 985-86 [finding some independent evidence of “each element” of the special circumstance]; People v. Brucker (1983) 148 CA3d 230, 237 [failure to give CJ 2.72 was error].)

 

To avoid the potential for such confusion CC 359 should be modified.

 

Sample Modification:

*Modify CC 359, paragraph 1, sentence 2, as follows:

[Delete “[or a lesser included offense]” and “[… or lesser offense].”]

*Add after paragraph 2:

If the other evidence only shows that the crime of _______________ <insert name of lesser offense> was committed you may not rely on any alleged out-of-court statement[s] by the defendant to convict (him/her) of _______________ <insert name of greater offense>. However, you may rely on such statements in considering whether the prosecution has proved the defendant guilty beyond a reasonable doubt of _______________ <insert name of lesser offense>.