SERIES 300 EVIDENCE
F 362.1 False Statements: Preliminary Fact Instructions
TABLE OF CONTENTS
F 362.1 Inst 1 Title Modification In Light Of Preliminary Facts
F 362.1 Inst 2 (a & b) False Statements: Falsehood—Requisite Preliminary Facts
F 362.1 Inst 3 False Statement Must Be Willful Or Deliberate
F 362.1 Inst 4 (a & b) False Statements Must Not Be Intended To Deflect Suspicion From Defendant And Not To Protect Another
F 362.1 Inst 5 (a & b) False Statements Must Relate To Charged Crime
F 362.1 Inst 6 (a & b) False Statements Must Occur After The Charged Crime
F 362.1 Inst 7 (a-c) False Statements Must Be Inconsistent With Testimony
F 362.1 Inst 8 False Statements By Others Than Defendant
F 362.1 Inst 9 False Statements: Defense Objection Precludes Instruction Which Benefits Defendant
Return to Series 300 Table of Contents.
F 362.1 Inst 1 Title Modification In Light Of Preliminary Facts
*Modify CC 362, Instruction Title, as follows [added language is underlined; deleted language is stricken]:
Consciousness of Guilt: Alleged False Statements
Points and Authorities
The defendant’s making of a deliberately false statement is a preliminary fact for the jurors to find. (See FORECITE F 362.1 Inst 2.) Therefore, the title should be modified as set forth above to avoid improper commenting on the evidence. (See FORECITE F 416.3 Inst 5; see also F 100.1 Inst 5 [Jurors Need Only Follow Instructions Which They Find Applicable To The Case].)
PRACTICE NOTE: As to the propriety of including instruction titles, see FORECITE F 200.1.2.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 362.1 Inst 2 (a & b) False Statements: Falsehood—Requisite Preliminary Facts
*Add to CC 362:
Alternative a [Evidence offered by prosecution: CALCRIM 376 & 1400 Format—Not Alone Sufficient To Convict]:
The prosecution alleges that the defendant made [a] false statement[s].
However, you must not consider this evidence for any purpose unless the prosecution has first proved the following preliminary facts by a preponderance of the evidence that:
1. The defendant made [a] false statement[s]; AND
2. The defendant did so willfully and with the intent to avoid being charged with or accused of the crime; AND
3. The defendant did so because (he/she) [believed (he/she) had done something wrong] [had feelings of guilt]; AND
4. The defendant’s [thoughts that he had done something wrong] [feelings of guilt] related to the charged crime.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that all [four] of the above preliminary facts have been proved, you must disregard, for all purposes, the alleged statement[s] of the defendant.
If you [all] find the above preliminary fact to exist, then you [may] [must] consider the alleged statement[s] of the defendant in your deliberations. However, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [No Specification Of Burden]:
Before considering the defendant’s statements, you must find that:
1. The defendant made [a] alleged false statement[s]; AND
2. The defendant did so willfully and with the intent to avoid being charged with or accused of the crime; AND
3. The defendant did so because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND
4. If and when the defendant [thought (he/she) had done something wrong] [had feelings of guilt] such [thought] [feelings] related to the charged crime.
Unless you find these preliminary facts to exist, you must disregard the statements.
Points and Authorities
Falsehood: Required Preliminary Facts.—It is necessary to establish four preliminary facts before false statements made before trial are relevant to establish a consciousness of guilt on the part of the defendant:
1. Defendant Made The Statement.—That the defendant made the false statements (People v. Kimble (1988) 44 C3d 480, 498).
2. Willfulness.—The defendant must have made these statements deliberately or wilfully so as to avoid apprehension. (Ibid.; see also People v. Amador (1920) 8 CA3d 788, 792.)
3. Intent To Avoid Detection Or Apprehension.—It must be shown that the defendant wanted to avoid apprehension because he believe he had done something wrong or had feelings of guilt. (See FORECITE F 372 (A-1) Inst 1.)
4. Relating To Charged Crime.—The defendant’s “thoughts that he had done something wrong” or “feelings of guilt” must relate to the charged offense. (See FORECITE F 362.1 Inst 5.)
Since these preliminary factual determinations are necessary to establish the relevance of the statements, the defendant has the right, under EC 403(c)(1), to an instruction informing the jury of the requirement that they first determine the preliminary facts before considering the evidence for the stated purpose. (See EC 403; see also Rucker & Overland, California Criminal Forms & Instructions §41:31; see also, People v. Louis (8194) 159 CA3d 156, 161; People v. Albertson (1944) 23 C2d 550, 582.)
Propriety Of Preliminary Fact Instruction – See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict – See FORECITE F 370 Inst 8.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
Unanimity Use Note.C If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.03a.
F 362.1 Inst 3 False Statement Must Be Willful Or Deliberate
Alternative a:
*Modify CC 362, paragraph 1, sentence 1, as follows [added language is underlined]:
If [the] defendant [_____________ <insert name of defendant when multiple defendants on trial>] [willfully] [deliberately] made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt.
Alternative b [Preliminary Fact: CALCRIM 376 & 1400 Format—Not alone sufficient to convict]:
*Replace CC 362 with:
The prosecution contends the defendant made [a] false statement[s].
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the defendant willfully made a false statement with the intent to deceive.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard [the defendant’s alleged statement[s]] [not consider the statement[s] against the defendant].
If you [all] find the above preliminary fact to exist, then you may consider the statement[s] [for the limited purposes of _________________] in your deliberations.
However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
See FORECITE F 362.1 Inst 2.
F 362.1 Inst 4 (a & b) False Statements Must Not Be Intended To Deflect Suspicion From Defendant And Not To Protect Another
*Add to CC 362 as follows:
Alternative a [Preliminary Fact: CALCRIM 1400 & 376 Format—Not alone sufficient to convict]:
The prosecution contends that the defendant made [a] false statement[s].
However, you must disregard any evidence of such alleged statement[s], for all purposes, unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the defendant made the statement to deflect suspicion from (himself/herself) and not to protect someone else.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged statement[s], for all purposes] [not consider the alleged statement[s] against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the alleged statement[s] [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [No specification of burden]:
You must not consider any alleged false statement unless you find that the defendant made the false statement for the purpose of deflecting suspicion from himself, and not to protect someone else.
Points and Authorities
Deflecting Suspicion From Defendant As Preliminary Fact.—CALCRIM 362 should not be given unless the defendant made the false statement for the purpose of deflecting suspicion from himself, as opposed to protecting someone else. (People v. Rankin (1992) 9 CA4th 430, 435-36.) “Only under such circumstances does a false statement indicate a consciousness of the defendant’s own guilt, thus becoming admissible against him.” (Id. at 436 [original emphasis]; see also People v. Louis (1984) 159 CA3d 156, 160 [“The giving of CJ No. 2.03 is justified when there is evidence that a defendant fabricated a story to explain his conduct.” ].
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph, of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
F 362.1 Inst 5 (a & b) False Statements Must Relate To Charged Crime
*Add to CC 362:
Alternative a [Evidence offered by prosecution: CALCRIM 376 & 1400 Format—Not Alone Sufficient To Convict]:
The prosecution contends that the defendant made [a] false statement[s].
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the alleged statement[s] related to the offense[s] charged in this case.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must [disregard the defendant’s alleged statement[s] for all purposes] [not consider the statement[s] against the defendant].
If you [all] find the above preliminary fact to exist, then you may consider the statement[s] [for the limited purpose of _________________] in your deliberations.
However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [No specification of burden]:
If you conclude that the defendant did make false statements, you may not consider them for any purpose unless you first determine that the statements related to the offense[s] charged in this case.
Points and Authorities
Relating To Charged Crime As Preliminary Fact.—“[E]vidence that the defendant fled the scene of a crime is admissible to demonstrate consciousness of guilt” when the “consciousness of guilt concern[s] the crime charged ….” (People v. Williams (1988) 44 C3d 1127, 1143, fn 9 quoting U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.) Accordingly, when there is no basis upon which to determine that the defendant’s consciousness of guilt was directed to the offenses for which he was on trial, as opposed to a different offense, the consciousness of guilt evidence is inadmissible to show the charged crime. (U.S. v. Myers 550 F2d at 1050; see also People v. Rankin (1992) 9 CA4th 430, 435-36.) However, “[a] reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’ ” (People v. Crandell (1988) 46 C3d 833, 871; see also People v. San Nicolas (2004) 34 C4th 614, 667 [false statements regarding a crime show a consciousness of guilt as to all the offenses committed during “a single attack” ].) Hence, because the applicability of consciousness of guilt to the charged offense is a preliminary fact that is a prerequisite to the relevance of the evidence, the jury should be instructed that it may not consider this evidence unless it finds said preliminary fact. (See EC 403; see also FORECITE F 319 Inst 1, F 2.001a.)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph, of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.03c.
F 362.1 Inst 6 (a & b) False Statements Must Occur After The Charged Crime
Alternative a:
*Modify CC 362, paragraph 1, sentence 1 as follows [added language is underlined:]
If, after the alleged crime was committed, [the] defendant [_____________ <insert name of defendant when multiple defendants on trial>] made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt.
Alternative b [Preliminary Fact: CALCRIM 1400 & 376 FormatC Not alone sufficient to convict]:
The prosecution contends that the defendant made [a] false statement[s] [about ___________].
You must not consider any evidence of such alleged statement[s], for any purpose unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the alleged statement[s] [was] [were] made after [__________ <date of crime>] the charged offense was alleged to have been committed.
[Insert other material preliminary facts. See F 362.1 et. al.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged statement[s], for all purposes] [not consider the alleged statement[s] against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the alleged statement[s] [for the limited purpose of ____________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
False Statements Must Be Made After The Crime.—False statements made by the defendant which are operative facts tending to prove commission of the crime itself do not warrant instruction upon consciousness of guilt. The defendant cannot be conscious of his or her guilt until after the crime has been committed. (People v. Rankin (1992) 9 CA4th 430, 435-36.)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph, of Alternative b, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.03 n2.
F 362.1 Inst 7 (a-c) False Statements Must Be Inconsistent With Testimony
*Add to CC 362:
Alternative a [Preliminary Fact: CALCRIM 1400 & 376 Format—Not alone sufficient to convict]:
The prosecution contends that the defendant made [a] false statement[s] [about _____________].
However, you must not consider any evidence of such alleged statement[s] for any purpose unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the alleged statement[s] [was] [were] inconsistent with the defendant’s testimony at trial.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged statement[s], for all purposes] [not consider the alleged statement[s] against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the alleged statement[s] [for the limited purpose of __________________ ] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b:
You may not consider the defendant’s testimony to show a consciousness of guilt if the testimony is consistent with the defendant’s pretrial statements even though it may be inconsistent with the prosecution’s case.
Alternative c [No specification of burden]:
You may not consider the defendant’s [alleged] pretrial statements unless you first find that they were inconsistent with the defendant’s testimony.
CAVEAT: See FORECITE F 319 Inst 1.
Points and Authorities
Inconsistency As Preliminary Fact.—In People v. Rubio (1977) 71 CA3d 757, 769, the court concluded that CJ 2.03 is “not applicable in a situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecution’s evidence before the jury.” (Rubio at 769 [original emphasis].)
In People v. Green (1980) 27 C3d 1, 40-41, the Supreme Court, while recognizing the existence of the Rubio rule, failed to either approve or disapprove it.
In People v. Benson (1989) 210 CA3d 1223, 1232-33, the court questioned whether Rubio is still valid in light of People v. Kimble (1988) 44 C3d 480. However, Kimble merely addressed the admissibility of the defendant’s testimony and, thus, did not address Rubio’s concern that CJ 2.03 “casts specific doubt on a defendant’s credibility as a witness and singles out defendant’s testimony as subject to more particular scrutiny than that attached to prosecution witnesses.” (Rubio, 71 CA3d at 769; emphasis in original.)
Nor did Benson—despite the doubt expressed in dicta about Rubio’s continued viability—specifically depart from the Rubio rule. (Benson, 210 CA3d at 1233.)
However, Rubio was expressly disapproved in People v. Edwards (1992) 8 CA4th 1092, 1101-04.
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph, of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.03 n7.
F 362.1 Inst 8 False Statements By Others Than Defendant
See FORECITE F 371(A-1) Inst 7.
F 362.1 Inst 9 Consciousness Of Guilt From False Statements: Defense Objection Precludes Instruction Which Benefits Defendant
[Do not give CALCRIM 376 over defense objection or in absence of defense request.]
Points and Authorities
People v. Jackson (1996) 13 C4th 1164, 1224 concluded that CJ 2.03, now CC 362, did not improperly endorse the prosecution’s theory or lessen its burden of proof because the cautionary nature of the instruction benefits the defense by admonishing the jury to view with circumspection evidence that might otherwise be considered decisively inculpatory. (See also People v. Page (2008) 44 C4th 1, 50, fn 24 [People v. Seaton (2001) 26 C4th 598, 673 “does not reflect any modification of our view that the instruction in question [CJ 2.03] benefits a defendant who has made dishonest statements concerning the crime”].) Accordingly, since the instruction, as interpreted by the California Supreme Court, benefits the defendant, the defense should have the option of waiving this benefit and precluding instruction on CC 362.
From the Court’s reasoning in Jackson, the defense should be able to waive the “benefit” of these instructions in such circumstances. (See FORECITE F 376 Inst 14.) The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons. (See also FORECITE PG VI(C)(1.1).) “A reasonable attorney may … tactically conclude[] that the risk of a limiting instruction … outweigh[s] the questionable benefits such instruction would provide.” (People v. Maury (2003) 30 C4th 342, 394; see also People v. Hernandez (2004) 33 C4th 1040, 1053 [“defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used” ]; In re Seaton (2004) 34 C4th 193, 200, n. 3 [trial counsel’s tactical decisions are accorded great deference].)
Finally, the Supreme Court in People v. Najera (2008) 43 C4th 1132, 1139 (Najera), held that a trial court has no sua sponte duty to give CC 376 because it is merely a more specific application of general instructions governing circumstantial evidence. (Najera, at p. 1138.) The court’s reasoning in Najera applies equally to similar sorts of instructions including those on consciousness of guilt. The court explained: “Where . . . an instruction simply informs the jury that a fact or cluster of facts is not, without more, substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions, we have not imposed a duty on trial courts to provide such an instruction sua sponte. For example, the instructions concerning consciousness of guilt (CALJIC Nos. 2.03, 2.04, 2.05 & 2.06) recite that such evidence is not sufficient by itself to prove guilt, yet we have never held that the trial court has a sua sponte duty to instruct the jury accordingly. (See Judicial Council of Cal., Crim. Jury Instns. (Fall 2007) Bench Notes to CALCRIM No. 371 [‘No authority imposes a duty to give this instruction sua sponte’].) . . . As the Court of Appeal pointed out below, ‘an instruction that tells the jury what kinds of rational inferences may be drawn from the evidence does not provide any insight jurors are not already expected to possess.’ [Citation.] Such instructions, while helpful in various circumstances, are not vital to the jury’s ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.” (Najera, supra, 43 C4th at p. 1139, fn. omitted.)
See also FORECITE F 372.1 Inst 6.
CALJIC NOTE: See FORECITE F 2.03 n9.