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PG III(B) Improper Argumentative vs. Proper Pinpoint Instructions.
When instructing the jury, a trial judge may not single out and give undue emphasis to particular evidence. (People v. Carter (2003) 30 CA4th 1166, 1225 [an instruction is “argumentative” if “it invite[s] the jury to draw inferences favorable to only one party from the evidence presented at trial …”]; People v. Harris (1989) 47 CA3d 1047, 1098, fn 31; People v. Reyes Martinez (1993) 14 CA4th 1412, 1417 [error to instruct that moving the victim 500 feet is sufficiently substantial to sustain the movement element a kidnapping conviction] ; People v. Wright (1988) 45 CA3d 1126, 1135 [pinpoint instruction is improperly argumentative if it directs the jury’s attention to specific evidence and “impl[ies] the conclusion to be drawn from that evidence” ]; State v. Cathey (KS 1987) 741 P2d 738, 749.) “Argumentative instructions that unfairly highlight particular facts favorable to one side are improper.” (People v. Mincey (1992) 2 CA4th 408, 437; see also [NF] People v. Santana REV GTD (6/10/2013, S198324) 56 CA4th 999.) [See also FORECITE PG III(B); F 362 Note 6; F 416.3 Inst 4.]
The distinction between an improperly argumentative instruction and a proper pinpoint instruction is illustrated in decisions which have rejected defense challenges to the consciousness of guilt instructions. For example, in People v. Randle (1992) 8 CA4th 1023, the court granted the D.A.’s request to tailor CJ 2.06 (Defendant’s Efforts to Suppress Evidence) to refer to “change of appearance” as a factor which may be indicative of consciousness of guilt. The Court of Appeal held that this was a proper pinpoint instruction because it referred only to “the generic type of consciousness of guilt disclosed by the evidence.” (Id. at 1037.) The court noted that “[a] contrary conclusion might have been reached if the trial court had specifically directed the jury’s attention to the change of hairstyle or missing shirt.” (Id. at 1036-37.) (See also People v. Fitzpatrick (1992) 2 CA4th 1285, 1297; People v. Bacigalupo (1991) 1 CA4th 103, 127-28.
Accordingly, a pinpoint instruction is not argumentative so long as it draws the jury’s attention to “generic” matters disclosed by the evidence. (See, e.g., People v. Battle (2011) 198 CA4th 50 [no error in instructing on validated factors relevant to aiding and abetting]; compare People v. Mouton (1993) 15 CA4th 1313 [instruction listing aiding and abetting factors included “bogus factors”].) For example, CJ 2.92 and CC 315 list generic factors (e.g., opportunity to observe, stress, race, etc.) which the jury may consider in evaluating eyewitness testimony. Similarly, an instruction which references other relevant factors for the jury to consider with respect to identification or any other material issue should be considered a proper pinpoint instruction. (See, e.g., People v. Frank (1990) 51 CA3d 718, 739 [recognizing right to specification of factors not covered by CJ 2.92]; People v. Fernandez (1990) 219 CA3d 1379, 1384 [jury may be instructed to consider the failure of the eyewitness to attend a pretrial lineup].)
However, a cautionary instruction may be appropriate to avoid the danger that such an instruction may give undue emphasis to the enumerated factors. (See, e.g., People v. Benson (1990) 52 C3d 754, 805, fn 12; People v. Harris (1989) 47 CA3d 1047, 1098, fn 31; cf., Davis v. Erickson (1960) 53 CA2d 860, 863-64 [no undue emphasis of supplemental instructions]; U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138, 1144-45 [recognizing “real danger” that jurors will place undue emphasis on specific testimony that is read back during deliberations]; U.S. v. Harris (7th Cir. 1975) 521 F2d 1089, 1093-94 [judge properly ordered readback of witness’s entire testimony were jury requested readback on a specific point]; State v. Wood (CT 1988) 545 A2d 1026, 1030 [jurors should be cautioned not to give undue emphasis to reproduced or written exhibits]; U.S. v. Johnson (4th Cir. 1975) 54 F2d 1150, 1159, fn 10 [no undue emphasis of pedagogical summaries]; see also FORECITE F 105.2 Inst 2.)
An example of a proper pinpoint instruction (requested by the prosecution) is the following: A perpetrator of a robbery has not reached a place of temporary safety if the continued control over the victim places the perpetrator’s safety in jeopardy.
This instruction is not argumentative because there is no reference to specific evidence, and the instruction is phrased to emphasize the jury’s duty to determine as a matter of fact whether the control affected the defendant’s safety. (People v. Carter (1993) 19 CA4th 1236, 1253, fn 11.)
In People v. Cash (2002) 28 CA4th 703, the Supreme Court upheld a prosecution pinpoint modification of CALJIC 2.06 (consciousness of guilt from intimidation of witness) which advised the jury that “[t]he intimidation referred to is the defendant’s alleged gesture of simulating a gun with his hand which was made at a court proceeding.” Thus, Cash may provide support for pinpoint instructions relating specific defense evidence to specific factors described elsewhere in an instruction.
See also FORECITE F 362 Note 6 [False Statement Instruction As Prosecution Pinpoint Instruction]; F 372 Note 10 [Consciousness Of Guilt As Improper Comment On The Evidence]; F 416.3 Inst 4 [Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does “Not Have To Prove”].
PG III(B) Sufficiency Of Evidence To Support Defense Instructions.