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PG IX(H) New or Different Instructions After Argument or During Deliberations.
PG IX(H)(1) Instructions Inconsistent With Defendant’s Theory Of The Case.
Prejudice to the defendant may result from the delivery of supplemental instructions on a defense which is inconsistent with the defendant’s theory of the case. (See People v. Lozano (87) 192 CA3d 618, 625-26 [237 CR 612].)
PG IX(H)(2) New Charges of Theories.
It is error to submit new charges and theories requested by either party after the jury has already retired to deliberate. (People v. Gramc (95) 647 NE2d 1052 [271 Ill.App.3d 282]; see also People v. Carron (95) 37 CA4th 1230, 1240 [44 CR2d 328].) For example, it is error to give an instruction permitting conviction of a lesser included offense for the first time during deliberations, even if the instruction would have been proper if it had been included in the original charge, because the jury may interpret delivery of that instruction as an indication that the court believes the defendant should be convicted of some offense. (People v. Jennings (72) 22 CA3d 945, 948-49 [99 CR 739]; People v. Stouter (04) 142 C 146, 146-50.)
PG IX(H)(3) Change In Definition Or Statement Of The Law.
The delivery, during deliberations, of a correct definition or statement of law does not cure the error resulting from delivery of an incorrect definition or statement as part of the original charge. (People v. Marzett (85) 174 CA3d 610, 615-17 [220 CR 217]; In re Krall (84) 151 CA3d 792, 796 [199 CR 91]; see also, People v. Hardnett UNPUBLISHED (A059605) where the court quoted R. Traynor (1970), “The Riddle of Harmless Error” in concluding that “a trial court can rarely cure an erroneous instruction simply by subsequent correct instruction that does not specifically displace the first.”)
PG IX(H)(4) Right To Reargue After Supplemental Instructions.
If the new instructions deal with a subject which was not adequately covered in counsel’s closing argument, counsel must be given the opportunity to reopen the argument to discuss the new subject. (People v. Ardoin (2011) 196 CA4th 102; People v. Cuccia (2002) 97 CA4th 785, 793–794; U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458-460; see also Annotation, Right of accused to additional argument on matters covered by amended or additional instructions, 15 ALR2d 490 and Later Case Service.)
“To prevent unfair prejudice, if a supplemental instruction introduces new matter for consideration by the jury, the parties should be given an opportunity to argue the theory.” (People v. Ardoin , supra, 196 CA4th at 129; see also U.S. v. Fontenot (9th Cir. 1994) 14 F3d 1364, 1368; People v. Bishop (1996) 44 CA4th 220, 231–235.) “The Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the right to the effective assistance of counsel at all critical stages of the proceedings.” (People v. Bishop, supra, at p. 231.) “‘To effectuate the constitutional rights to counsel and to due process of law, an accused must … have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan (2005) 35 C4th 646, 670.) If supplemental or curative instructions are given by the trial court without granting defense counsel an opportunity to object, and if necessary, offer additional legal argument to respond to the substance of the new instructions, the spirit of section 1093.5 and the defendant’s right to a fair trial may be compromised. (Cooper v. Superior Court (1961) 55 C2d 291, 302; People v. Sanchez (1978) 83 CA3d Supp. 1, 7; People v. Lockheed Shipbuilding & Constr. Co. (1975) 50 CA3d Supp. 15, 34.)
PG IX(H)(5) Mid-trial Change In Ruling Regarding Instruction.
In People v. Dennis (98) 17 C4th 468, 532-35 [71 CR2d 680], the court implicitly recognized that the defendant could be unfairly surprised if the trial court, at the end of the evidence, changed its mid-trial rulings regarding cautionary and limiting instructions as to the evidence admitted. However, Dennis made it clear that the trial attorney must object and put the basis for the unfair surprise on the record as soon as possible. Failure to do so waives the error.
PG IX(H)(6) Supplemental Instruction Should Not Tell Jury In What Order To Consider Issues.
[See Brief Bank # B-794. for briefing on this issue.]