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.
*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>.