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PG V(A) Sua Sponte Duties.
[See also FORECITE BIBLIO, “Sua Sponte Instructions” (BIBLIO SS)]
PG V(A)(1) Province of the Court.
The interpretation of a statute and the question of its applicability to any given set of facts are exclusively the province of the court. Therefore, the court is under a duty to assure that the jury instructions do not leave matters of statutory construction for resolution by the jury. (People v. Thomas (45) 25 C2d 880, 897 [156 P2d 7]; see also PG II(B).) (For a selected list of rules of statutory construction see CHK IV “Rules of Statutory Construction”.)
PG V(A)(2) Duty to Instruct on General Principles, Elements and Theories.
When it comes to jury instructions, “[a]t a minimum, it is the court’s duty to ensure the jury is adequately instructed on the law governing all elements of the case …” (People v. Iverson (72) 26 CA3d 598, 604 [102 CR 913].) Moreover, the trial court has “an affirmative duty to give, sua sponte, a correctly phrased instruction on defendant’s theory.” (People v. Stewart (76) 16 C3d 133, 140 [127 CR 117].) “It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (Kelly v. South Carolina (2002) 534 US 246 [151 LEd2d 670, 681; 122 SCt 726, 733] [“It is the duty of the trial judge to charge the jury on all essential questions of law, whether requested or not”]; see also People v. St. Martin (70) 1 C3d 524, 531 [83 CR 166]; People v. Sedeno (74) 10 C3d 703, 716 [112 CR 1].) “Included within this duty is the … obligation to instruct on defenses, … and on the relationship of these defenses to the elements of the charged offense …. [Citations].” (People v. Stewart 16 C3d at 140; see also People v. Montoya (94) 7 C4th 1027, 1050 [31 CR2d 128] [sua sponte duty applies to theories which the evidence “strongly illuminates.”]
“[I]t is [the] court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. [Citation.]” (People v. Sanchez (50) 35 C2d 522, 528 [219 P2d 9]; see also McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 836.)
Note, however, that a defense which the courts have not given substantive discussion and which is not included in CALJIC may not be a “general principle” upon which sua sponte instruction is required. (People v. Flannel (79) 25 C3d 668, 672 [160 CR 84].)
(See FORECITE PG X(A) for further discussion of the standard of review regarding the judge’s duty to instruct.)
PG V(A)(2.1) Duty Of Judge To Instruct Not Dependent On Manifestation Of Confusion By Jury.
(See Kelly v. South Carolina (2002) 534 US 246 [151 LEd2d 670, 681; 122 SCt 726, 733] [A trial judge’s duty is to give instructions sufficient to explain the law, an obligation that exists independently of any question from the jurors or any other indication of perplexity on their part”].)
PG V(A)(2.2) Judge’s Duty To Not Instruct On Inapplicable Theories.
It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. (People v. Eggers (1947) 30 C2d 676, 687.) Therefore, it is generally preferable “to remove an unsupported theory from the jury’s consideration….” ( People v. Guiton (1993) 4 C4th 1116, 1129-1130.)
See also FORECITE PG X(E)(16) [Errors In Superfluous Or Irrelevant Instructions].
PG V(A)(3) Duty to Go Beyond Form Instructions.
[See FORECITE PG I(B).]
PG V(A)(3)(a) Duty To Tailor Standard Form Instructions To Reflect The Facts And Legal Theories Presented At Trial.
Tailoring Is Necessary Because “Every Trial Has Its Own Peculiar Facts.”
Years ago Judge Devitt made an obvious observation: “every trial has its own peculiar facts. . . .” Devitt, Ten Practical Suggestions About Federal Jury Instructions, 38 F.R.D. 75, 77 (1965) [quoted in United States v. Regan, 937 F.2d 823, 828 (2d Cir. N.Y. 1991)]. From this simple truth flows one of the most important, but often forgotten, principles of jury instruction practice: The standard model or pattern instructions should “not be swallowed whole” but must be tailored to the peculiar facts and issues of the case at bar. (United States v. Steele, 685 F.2d 793, 810 (3d Cir. N.J. 1982) [citing 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 8.03 at 247 (3d ed. 1977)].)
In California judges the need to tailor the instructions has been well recognized. (See, e.g., People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts”].) Indeed, it has been held that when properly requested to do so the judge may not “refuse to tailor [an] instruction to the facts of the case.” (People v. Hall (1980) 28 C3d 143, 159; People v. Randle (1992) 8 CA4th 1023, 1036-37 [judge properly granted D.A.’s request to tailor CJ 2.06]; cf., People v. Falsetta (1999) 21 C4th 903, 924 [duty of judge to tailor instruction requested by defendant]; People v. Fudge (1994) 7 C4th 1075, 1110 [same].)
The Need To Tailor Standard Model/Pattern Instructions.
In the years since Judge Devitt’s warning about “formalized instructions,” the use of such instructions has become commonplace. Nearly every jurisdiction now has its own set of pattern or model instructions upon which most judges heavily rely in every trial. Nevertheless, many jurisdictions have heeded Judge Devitt’s advice and given trial judges the discretion and the duty to tailor the standard instructions. (See cases cited below.)
Because the standard pattern, model or form instructions are often divorced from the facts the jurors may be confused or misled by word-by-word recitation of those instructions. As a Wisconsin appellate court explained: “Standard jury instructions are to assist the court but should not be used as a substitute for the court developing appropriate instructions relating to the specific facts of each case…[P]attern jury instructions are tools to assist the court, but do not eliminate the court’s need to refine the instructions based upon the specific facts of any particular case. [Citation.]” (Anderson by Skow v. Alfa-Laval Agri, 209 Wis. 2d 337, 345-346 (Wis. Ct. App. 1997). Thus, reviewing courts often advise trial judges to tailor jury instructions to the facts and circumstances presented at trial rather than rely on model instructions that contain general or “stock” language. Sharma v. State, 118 Nev. 648, 56 P.3d 868, 874 (Nev. 2002); see also State v. Sexton, 160 N.J. 93, 733 A.2d 1125, 1132 (N.J. 1999) [same]; People v. Lundy UNPUBLISHED (Mich 2001) 2001 Mich.App. LEXIS 1989, PP 2-3.)
Abstract Legal Principles “Divorced From The Facts” May Confuse Or Mislead The Jurors And Result In An Unfair Trial.
A trial judge is required to tailor the jury charge to the facts of the case in situations when a statement of the law, “divorced from the facts, [is] potentially confusing or misleading to the jury” or the case presents “an abstract issue of law in view of the facts of the case.” (State v. Robinson, 165 N.J. 32, 42-43, 754 A2d 1153 (2000); see also People v. Job, 217 AD2d 497 (N.Y. App. Div. 1st Dep’t 1995) [judge’s refusal to tailor the agency charge “to reflect the particular facts and circumstances of the case”denied defendant a fair trial].)
Tailoring Required To Explain How The Jury Should Apply The Legal Principles To The Facts.
Trial courts are charged with molding jury instructions to meet the facts of the case so that they provide the jurors with “a road map that explains the applicable legal principles, outlines the jury’s function, and spells out ‘how the jury should apply the legal principles charged to the facts of the case at hand.’ [Citation].” (Toto v. Ensuar, 196 N.J. 134, 144, 952 A2d 463 (2008); see also People v. Job, 217 AD2d 497 (N.Y. App. Div. 1st Dep’t 1995) [judge’s refusal to tailor the agency charge “to reflect the particular facts and circumstances of the case”denied defendant a fair trial]; Rayner v. Lowe, 60 Ohio App. 3d 3 (Ohio Ct. App., Morgan County 1989) [judge must “tailor” the charge to the “disputed facts”]; Jones v. State, 2001 Tex. App. LEXIS 2298 (Tex. App. Texarkana Apr. 10, 2001) [same]; Salt Lake City v. Hendricks, 2002 UT App 47 (Utah Ct. App. 2002) [same]; Olsen v. State, 2003 WY 46, P134 (Wyo. 2003) [“judge is afforded latitude to tailor the instructions to the facts of the case”]; United States v. Heredia, 483 F3d 913, 920 (9th Cir. Ariz. 2007) [same].)
Tailoring Required To Explain The Theories Of The Parties.
Where necessary for the jurors’ understanding, the judge must “tailor the charge to the theories of the parties to enable review of the evidence in that context.” (See Reynolds v. Gonzalez, 172 N.J. 266, 288-89, 798 A2d 67 (2002).) For example, when a criminal defendant relies on self defense, the instructions on self defense should be tailored “to adequately reflect the facts and theories presented by the defendant.” (State v. Day, 341 SC 410, 418 (S.C. 2000); see alsoState v. Angulo, 471 NW2nd 570, 574 (MN 1991) [self defense instruction may be tailored to fit the facts]; People v. Hall (1980) 28 C3d 143; State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989); U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286 [buyer-seller instruction should be tailored to facts].)
Tailoring To Remove Unnecessary Language.
Standard instructions occasionally address matters which are not relevant to the case being tried. Such superfluous language should be removed. (See FORECITE PG X(E)(16).) For example a Nevada court cautioned “the district court to carefully tailor . . . instructions to the unique facts of the case and to avoid unnecessary language.” (Jackson v. State (NV 2000) 117 Nev. 1041, 1051.)
Tailoring To Facts: Naming The Alleged Victim.
Generally instructions will be less confusing if the alleged victim is specifically named rather than generically referred to as “a person” or “the alleged victim.” Thus, if the standard instruction does not provide a blank for inserting that victim’s name, the instruction should be tailored to add the name. (See, e.g., FORECITE F 600.2 Inst 4.)
PG V(A)(4) Duty to Protect Defendant’s Rights.
The trial judge is “a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts ….” (People v. Carlucci (79) 23 C3d 249, 256 [152 CR 439].) Thus, “it is the duty of the trial judge to see that a case is not defeated by ‘mere inadvertence’. [Citation].” (People v. St. Andrew (80) 101 CA3d 450, 457 [161 CR 634]; see also People v. Jones (79) 95 CA3d 403, 407 [157 CR 51]; FORECITE F 4.45 n3.)
“The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial.” (People v. Ponce (96) 44 CA4th 1380, 1387 [42 CR2d 422] [internal citations and quotation marks omitted].) “Simply put, the trial court’s duty to conduct judicial business efficiently cannot trump defendant’s right to present his defense in a manner he desires, particularly where accommodating him…would have…only a slight impact on efficiency.” (People v. Cuccia (2002) 97 CA4th 785, 795 [118 CR2d 668].)
Accordingly, it is an abuse of discretion to deny the defendant a continuance where rigid insistence on adhering to the trial schedule would be to the detriment of the defendant’s right to a fair trial. (Ibid.)
PG V(A)(5.1) Duty to Screen Out Factually Unsupported Theories.
In People v. Guiton (93) 4 C4th 1116 [17 CR2d 365], the Supreme Court, while providing a new standard of prejudice regarding factually unsupported theories, cautioned that such theories “should not be presented to the jury.” (Id. at 1131.) “Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place.” (Ibid.)
PG V(A)(5.2) Sua Sponte Duty To Give Preclusion Instruction Regarding Erroneous Legal Theory.
For an article on this issue, see Article Bank # A-96.
PG V(A)(6) Duty To Instruct On Defenses.
(1) Court Must Instruct Sua Sponte On Defense Supported By Substantial Evidence And Consistent With Defendant’s Theory. A trial court must instruct on legal “principles closely and openly connected with the facts of the case, and which are necessary for the jury’s understanding of the case [citations],” including “an affirmative defense . . . even in the absence of a request, ‘if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Boyer (2006) 38 CA4th 412, 468-469; see also People v. Barton (1995) 12 CA4th 186, 195.) For example, People v. Gonzales (1999) 74 CA4th 382, 389-90 held that it was reversible error to not instruct, sua sponte, upon the defense of accident when the defendant testified that the victim’s injuries were caused accidentally.
“The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative. [Citations.]” (People v. Lewis (2001) 25 CA4th 610, 646.)
(2) Duty To Instruct On Inconsistent Defenses. See FORECITE PG V(K).
Federal appellate cases also permit the raising of inconsistent defenses. (See, e.g., Johnson v. U.S. (D.C. Cir. 1970) 426 F2d 651, 656 [in a rape case the defense was permitted to argue both that the act did not take place and that the victim consented].)
(3) Basic Principles: Defenses And Defense Theories. See FORECITE F 3300.
See also FORECITE PG III(B); PG X(A)(1).
PG V(A)(7) Judge’s Duty To Instruct On Lesser Included Offense.
PG V(A)(7.1) Sua Sponte Duty.
See FORECITE LIO II(A)(3).
PG V(A)(7.2) Instruction on Lesser Included Over Defense Objection.
People v. Barton (1995) 12 C4th 186 held that People v. Sedeno (2974) 10 C3d 703 requires instruction on lesser included offenses supported by the evidence even when the offenses are inconsistent with the defense elected by the defendant and even if the defendant objects to the instruction. (Barton, 12 C4th at 198, fn 7; see also, People v. Eilers (1991) 231 CA3d 288, 294, fn 4.) If the trial court, albeit erroneously, sustains the defendant’s objection to instruction on a lesser included offense, then the error is invited. (See People v. Horning (2004) 34 C4th 871, 905-06 [defendant did not want the instructions because they were inconsistent with his defense that he did not commit the crime at all]; see also People v. Hardy (1992) 2 C4th 86, 185 [Beck (Beck v. Alabama (1980) 447 US 625 [65 LEd2d 392; 100 SCt 2382]) does not prohibit a criminal defendant from choosing to forego such instructions for strategic reasons. . . .”]; People v. Duncan (1991) 53 C3d 955, 969.)
In contrast to lesser included offenses, a trial court’s duty to instruct, sua sponte, on particular defenses arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (Barton, 12 C4th at 195.) Substantial evidence is evidence sufficient to “‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive. [Citation.]” (Barton, 12 C4th at 201, fn 8.)
[See Brief Bank # B-513 and B-538 for the briefing before the California Supreme Court in Barton.]
PG V(A)(7.3) Instructing On Lesser Included Offenses Under CALCRIM.
See FORECITE PG XI(G).
PG V(A)(8) Terms With Specialized/Technical Meaning: Sua Sponte Duty to Define.
“The rules governing a trial court’s obligation to give jury instructions without request by either party are well established. ‘Even in the absence of a request, a trial court must instruct on general principles of law that are … necessary to the jury’s understanding of the case.’ [Citations.] That obligation comes into play when a statutory term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 C4th 979, 988; see also People v. Hudson (2006) 38 C4th 1002, 1012.) “A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” (People v. Estrada (1995) 11 C4th 568, 574; accord, People v. Roberge, supra, 29 C4th at 988; see also People v. Pitmon (1985) 170 CA3d 38, 52; People v. Hill (1983) 141 CA3d 661, 668; People v. McElheny (1982) 137 CA3d 396, 403.)
See also PG VI(A)(1.20) [Cognizability Of Error Without Objection: Failure To Define Technical Term].
See also FORECITE CHK III “Technical Terms and Definitions.”
PG V(A)(9) Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence:
See FORECITE PG X(A)(1.4.1).
PG V(A)(9.1) Defendant Need Not Testify To Require Instruction On Defense Theory.
See FORECITE PG X(A)(1.3.2)
PG V(A)(9.2) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate.
See FORECITE PG X(A)(1.3.4).
PG V(A)(10) Statutorily Mandated Sua Sponte Instructions.
See FORECITE CHK I “Instruction Statutes”.
PG V(A)(11) Duty to Instruct on Expert Testimony.
The court has sua sponte duty to instruct jury on proper use of expert testimony. (E.g., child sexual abuse accom. syndrome.) (PC 1127b; People v. Housley (92) 6 CA4th 947, 957-59 [8 CR2d 431].)
PG V(A)(12) Limitations on Sua Sponte Duty.
Recent decisions emphasize that there are substantial limits on the sua sponte duty to instruct. (See People v. Ainsworth (88) 45 C3d 984, 1017 [248 CR 568], holding that sua sponte duty is limited to giving the “standard instruction” on proximate cause; People v. Saille (91) 54 C3d 1103, 1117-19 [2 CR2d 364] [no sua sponte duty to instruct upon defense theories, such as intoxication, which merely negate an element of charge].)
In light of People v. Barton (95) 12 C4th 186, 198 [47 CR2d 569], voluntary intoxication is not a “defense” but rather it reduces an offense to a lesser included offense. Hence, Barton requires the trial court to instruct sua sponte on an intoxication based lesser included offense if substantial evidence of voluntary intoxication is presented. However, because voluntary intoxication is itself a defense theory (People v. Saille (91) 54 C3d 1103, 1121 [2 CR2d 364]), the defense must request a pinpoint instruction (e.g., CJ 4.21) if it seeks an instruction specifically relating intoxication to the elements of the offense charged.
PG V(A)(13) Sua Sponte Duty to Instruct Upon Lesser Included Offenses Based On Intoxication.
People v. Saille (91) 54 C3d 1103, 1117-20 [2 CR2d 364] held that the trial court has no sua sponte duty to instruct upon the relationship between intoxication and the formation of the mental state elements of the charge (e.g., CJ 4.21; see also People v. Castillo (97) 16 C4th 1009 [68 CR2d 648] [no IAC for failure to relate CJ 4.21 to mental state]. However, Saille did recognize that the trial court has a sua sponte duty to instruct upon lesser included offenses which are supported by the evidence. (See Saille 54 C3d at 1121 [distinguishing People v. Ray (75) 14 C3d 20 [120 CR 377] by differentiating between the duty to instruct upon pinpoint theories as opposed to lesser included offenses]; see alsoPeople v. Barton (95) 12 C4th 186, 198 [47 CR2d 569].)
Two recent cases have confused the court’s duty to instruct upon lesser offenses as opposed to its duty to pinpoint the intoxication theory per CJ 4.21. (See People v. Walker (93) 14 CA4th 1615, 1622-23 [18 CR2d 431]; People v. Morales (92) 5 CA4th 917, 927 [7 CR2d 358].) Walker and Morales contain language suggesting that instruction upon attempted voluntary manslaughter based on intoxication was correctly omitted because the lesser offense instruction was not requested. However, in point of fact, the instruction was properly omitted because Saille precludes reduction of murder to voluntary manslaughter by intoxication. Hence, there was no duty to instruct on such lesser offenseeven if it had been requested. Walker and Morales do not generally relieve the trial court of its sua sponte duty to instruct on valid intoxication based lesser offenses. (E.g., second degree murder, involuntary manslaughter.)
NOTE: Walker and Morales concerned intoxication based lesser includeds to attempted murder. However, the availability of such lessers is a complex and somewhat unsettled area. (See FORECITE F 8.66.)
PG V(A)(14) Impact Of Stipulation On Duty To Instruct:
In a number of situations it has been held that the defendant may stipulate to prior convictions to avoid having the jury hear evidence and receive instruction upon the alleged prior conviction. (See discussion of People v. Bouzas (1991) 53 C3d 467 and other cases in FORECITE F 10.38 n1; F 12.43 n6; F 12.44(a); F 12.65 n2; and F 14.40 n1; see also Old Chief v. U.S. (1997) 519 US 172 [136 LEd2d 574; 117 SCt 644]; People v. Kipp (1998) 18 C4th 349 [questioning relevance of testimony of parent identifying property of murder victim where defendant offered to stipulate that property belonged to the victim]; People v. Avitia (2005) 127 CA4th 185, 193-94 [reversible error evidence of gang graffiti found in defendant’s bedroom on issue which was undisputed and to which defense offered to stipulate]; but see People v. Scheid (1997) 16 C4th 1, 16-17] [stipulation to manner of shootings in felony murder case did not preclude specific evidence].)
PG V(A)(15) Sua Sponte Duties In Civil Commitment Proceedings.
The procedural protections applicable in criminal trials are also afforded in commitment-extension proceedings. (PC 1026.5(b)(7) [“The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings”]; see also People v. Wilder (1995) 33 CA4th 90, 102 [applying sua sponte instruction rule in §1026.5 case]; n8 CALCRIM No. 3453 (Fall 2008), Bench Notes, p. 914.)