CC 362 Not Erroneous But “Can Be Improved”
July 3rd, 2019

In People v. Burton (2018) 29 Cal.App.5th 917 the defense contended that the “false statements” jury instruction (CC 362) created an impermissible inference that Burton committed first degree murder versus a lesser offense. Burton argued the CC 362’s reference to the “charged crime” undermined any claim that the defendant may have felt a consciousness of guilt of a lesser offense than first degree murder and therefore created a presumption of guilt of the charged crimes. Burton noted that the analogous CALJIC instruction (CJ 2.03) provided only that deliberately false statements could be used to show a consciousness of guilt without restricting that awareness of guilt to the “charged” crime. The reviewing court concluded that the jury would have understood that any consciousness of guilt evidenced by Burton’s false statements to police would operate as to any degree of homicide, not merely first degree murder.


However, as the court observed, this does not mean that the instruction cannot be “improved.” Other CALCRIM instructions regarding consciousness of guilt speak of facts from which it may be inferred a defendant was “aware of (his/her) guilt” generally, without any possible suggestion that the inference is limited to guilt of the crime(s) charged, such as the instructions on suppression or fabrication of evidence (CC 371) and flight (CC 372) that were given to the jury in this case. Similarly, CC 362 could be amended to refer to consciousness of guilt without referencing the charged crime (as CJ. 2.03 did and as CC. 371 and CC 372 do) and avoid the issue. (29 Cal. App. 917, 926 n.2.)

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