In People v. Nieves (2021) ______Cal 5th ______(May 3, 2021, S092410) [pp. 68-69] the CSC concluded that:
…[I] was error to instruct the jury with CALJIC former No. 2.28, given the deficiencies we have identified in that instruction [Citation to People v. Thomas (2011) 51 Cal.4th 449, 483] and the scope of discovery violations in defendant’s case.
First, the instruction informed the jury that the “defendant” concealed and failed to timely disclose evidence when there was no indication defendant played any such role. It was therefore misleading to suggest that “the defendant” bore any responsibility for [her] attorney’s failure to provide discovery.
Second, although the instruction indicated that concealment and late disclosure could affect the prosecution, there was no evidence that this had actually deprived the prosecutor of the chance to subpoena witnesses or marshal evidence in rebuttal.
…
Finally, the instruction was deficient in informing the jury that the weight and significance of any delayed disclosure are matters for your consideration, because it offered no guidance on how this failure might legitimately affect their deliberations.
[Internal citation and punctuation omitted.]
These concerns also apply to CC 306 even though it eliminated any express suggestion that the defendant personally concealed or failed to disclose evidence. As the CALCRIM bench notes recognize, there is still a danger that CC 306 will all the jurors to speculate that the defendant is to blame for the failure to timely disclose:
The court should consider whether giving this instruction could jeopardize the defendant’s right to a fair trial if the jury were to attribute a defense attorney’s malfeasance to the defendant.
Moreover, as with CJ 2.28, CC 306 fails to provide the jurors with any guidance as to how the failure to disclose “might legitimately affect their deliberations.”
In sum, Nieves confirms that the giving of CC 306 is problematic when applied to the defense and that neither the instruction nor the evidence of counsel’s failure to timely produce discovery should be given to the jurors.
See also
F 306 Inst 1 Defense Has No Obligation To Present Evidence
F 306 Inst 3 Failure To Provide Discovery Is Not Alone Sufficient To Convict
F 306 Note 1 Improper To Penalize Defendant For Counsel’s Discovery Violation
F 306 Note 2 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation
