People v. Fuentes (2009) 171 Cal. App. 4th 1139, held that CC 362 does not conflict with instructions on criminal street-gang participation.
Category Archives: Blog
Prosecution Order For Mental Examination Of Capital Defendant
The Related Issues section cites Centeno v. Superior Court for the proposition that a defendant must submit to an examination by a prosecution expert if the defendant places at issue the question of whether he is mentally retarded. (Centeno v. Superior Court (2004) 117 Cal. App. 4th 30.) Later California Supreme Court cases have severely limited and restricted the ability of the prosecution to obtain an order for an examination of the defendant. (Verdin v. Superior Court (2008) 43 Cal. 4th 1096; People v. Wallace (2008) 44 Cal. 4th 1032.) It is not clear that the prosecution may obtain such an order even in the context of a claim of mental retardation.
CC 376 Possession Of Recently Stolen Property: Burden Of Proof And Due Process Issues
Relying on cases which had upheld the substantially identical CJ 2.15, People v. Lopez (2011) 198 Cal. App. 4th 698, held that CC 376 did not violate due process and did not decrease the prosecution’s burden of proof.
Death Penalty: Response To Jury Inquiring About Commutation
This instruction was added on April 23, 2010, at the recommendation of the CC Committee. The Committee noted that “Because it is so easy to make a mistake in instructing on this issue, the committee agreed that it was important to provide a carefully crafted instruction for courts to use.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 3.)
The April, 2011, revision of CC 767 was prompted by the California Supreme Court’s opinion in People v. Letner and Tobin. As explained by the Advisory Committee on Criminal Jury Instructions, “A recent Supreme Court case, People v. Letner and Tobin (2010) 50 Cal. 4th 99, 204-207, changed the law on responding to juror inquiries about commutation of sentence in death penalty cases by disfavoring admonitions that jurors should assume that whatever sentence they choose will be carried out. The Letner and Tobin opinion providently provided suggested language for implementing the change. Accordingly, the committee revised [CC No. 767], Response to Juror Inquiry About Commutation of Sentence in Death Penalty Case, by following the Supreme Court’s helpful suggestion.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 29, 2011, pp. 3-4.)
Death Penalty: Repeating Guilt Phase Instructions
If the trial court instructs the jury to disregard all instructions given at the guilt phase, it must give those instructions which are applicable to the evaluation of the evidence at the penalty phase. Failure to give the required instructions will be reviewed under the harmless beyond a reasonable doubt standard. (People v. Lewis (2008) 43 Cal. 4th 415, 534-535.)
Jury Unanimity: Child Molestation
In a child molestation case, CC 3501 may be given instead of CC 3500.
“[CC 3501] is an alternative instruction to [CC No. 3500]. [CC 3501] affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in [CC 3500]: agreement as to the acts constituting each offense. But unanimity may also be found under [CC 3501] if the jury agrees ‘that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].’” (People v. Fernandez (2013) 216 Cal. App. 4th 540.)
CC 376 Possession Of Recently Stolen Property: CC 376 Not Required Sua Sponte
The CC Committee has concluded that the trial judge has no sua sponte duty to instruct with CC 376. (CC 376 Bench Notes, citing People v. Najera (2008) 43 Cal. 4th 132.) The CJ equivalent is CJ 2.15.
Gang Special Circumstance: Predicate Offense Must Occur Before Charged Offense
People v. Duran (2002) 97 Cal. App. 4th 1448, 1458, [predicate offense cannot be satisfied by a crime which occurred after the charged offense].
Felony Murder Special Circumstances: Required Elements
In a felony-murder special-circumstances case the judge has a duty to instruct that the defendant must (1) have personally had the intent to kill or (2) have been a major participant in the commission of the underlying felony and have acted with reckless indifference to human life. (People v. Mil (2012) 53 Cal. 4th 400, 409.)
Impact On Duty To Instruct On Mental State Element Of Substantive Offense
According to People v. Hernandez (2010) 181 Cal. App. 4th 1494, when CC 401 is given, there is no need to further repeat CC 401’s mental state requirement in the instruction for the offense that the defendant allegedly aided and abetted because the jury was told to consider the instructions together. Hernandez held there was no error in the instructions that were provided. (Id. at 1502.)