PG V(B)

PG V(B) Requested Instructions.

PG V(B)(1) General Rules:

PG V(B)(1.1) Right To “Theory Of The Case” Instruction Upon Request:

“Each party has an absolute right to instruction based on its own theory of the case if there is any evidence to support it. [Citations.]” (Maxwell v. Powers (94) 22 CA4th 1596, 1607 [28 CR2d 62]; see also Logacz v. Brea Community Hospital, et al. (99) 71 CA4th 1149 [84 CR2d 257].)

“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (94) 8 C4th 548, 572 [34 CR2d 607].)

(See also FORECITE PG VII(C)(13).)

PG V(B)(1.2) Instruction Embodying General Rule Does Not Justify Refusing More Specific Instruction Applying The Rule To The Facts Of The Case.

“A trial court should not require a party to rely on abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it. [Citations.]” (Self v. General Motors Corp. (74) 42 CA3d 1, 10 [116 CR 575]; see also Soule v. General Motors Corp. (94) 8 C4th 548, 572 [34 CR2d 607]; see also Sesler v. Ghumman (90) 219 CA3d 218, 225 [268 CR 70].) “Therefore, giving an instruction embodying a general rule does not justify refusing a more specific instruction applying the rule to the particular circumstances of the case.” (Id. 219 CA3d at 225; see also Hildebrand v. Los Angeles J. R. Co. (60) 53 C2d 826, 831 [3 CR 313]; see also PG III(A) [defendant’s right to directly relate the theory of defense to an element of the charge].)

PG V(B)(1.3) Requested Instructions: Doubts Resolved In Favor Of Defendant.

See FORECITE PG X(A)(1.3.3).

PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine:

See also FORECITE PG X(A)(1.7).

PG V(B)(1.5) 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 V(A)(9.2).

PG V(B)(1.6) Requested Instructions: Right To Request Instruction Defining Common Terms; Non-Technical Terms.

There is no sua sponte duty to define common terms which do not have a technical legal meaning. (See FORECITE F 1.00n; see also FORECITE CHK III(A).) However, because jurors are not permitted to refer to a dictionary (see FORECITE PG V(B)(1.7)) and may not otherwise be able to define certain common terms, definition of such terms may be appropriate on request. (See People v. Cole (2004) 33 C4th 1158, 1217-18 [no further explanation of common terms required “in the absence of a specific request”]; see also People v. Cox (2003) 30 C4th 916, 967 [same].)

Moreover, even absent a request it may be appropriate for the judge to define a common term when the jury has expressed a lack of understanding as to its meaning. (See People v. Kilpatrick (94) 7 C4th 988, 1025, Mosk, J., concurring.)

PG V(B)(1.7) Jurors Not Permitted To Consult Dictionary.

“Resort to outside sources for amplification of instructions is not permitted. Jurors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law. [Citations.] Use of a dictionary to obtain further understanding of the court’s instructions poses a risk that the jury will misunderstand the meaning of terms which have a technical or unique usage in the law.” (People v. Karis (88) 46 C3d 612, 642 [footnote omitted];People v. Honeycutt (77) 20 C3d 150, 157 [improper for juror to consult his company’s business lawyer for definition of “diminished capacity”]; Glage v. Hawes Firearms Co. (90) 226 CApp3d 314, 325 [improper use of dictionary definition of “preponderance”]; People v. Harper (86) 186 CA3d 1420, 1426 [improper use of dictionary definition of “murder”].)

PG V(B)(1.8) No Duty To Give Duplicative Instructions.

“We have suggested that ‘in appropriate circumstances’ a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case … .” (People v. Bolden (2002) 29 C4th 515, 558.) But a court need not give a pinpoint instruction if it “merely duplicates other instructions.” (Ibid.; see also, e.g., People v. Garceau (93) 6 C4th 140, 191 [no error in refusing to give a special instruction that would have cautioned the jury to examine with greater care the testimony of an informer, for the jury received adequate standard instructions on the credibility of witnesses]; People v. Harrison (2005) 35 C4th 208.)

PG V(B)(1.9) General Reference To Evidence Not Improper In Limiting Instruction.

In situations where the judge refuses to give a traditional instruction, the instruction might be more acceptable if phrased as a cautionary or limiting instruction. For example, People v. Villagrana UNPUB’D (2011, B220061) 2011 Cal. App. Unpub. LEXIS 3393, 23-24 justified an instruction referring to the defendant’s allegedly false statements as follows:

As given here, CALCRIM No. 375 was not argumentative, as it did not invite or compel the jury to draw any inferences, and it did not express or suggest the court’s opinion. It was a limiting instruction given to protect defendant from improper inferences. It is not improper to refer generally to evidence in giving such a cautionary instruction. (Cf. People v. Ghent (1987) 43 Cal.3d 739, 759-760.) The instruction’s reference to evidence of threats was general and did not include the specific statements by defendant that he was going “to get” Gutierrez, and “I got you, ese.” (Italic added.) The trial court did not err in giving the instruction.

PG V(B)(2) No Preference for CALJIC Instructions:

[See FORECITE PG I(B).]

PG V(B)(3) Endorsement and Written Reasons for Refusal:

When a requested instruction is refused, the court must endorse the instruction with its reasons for refusing it and with a notation as to which party sought the instruction. (PC 1127, Rule 229(c).)

On review, any unendorsed instruction is considered to have been prepared by the defendant and rejected by the judge. (People v. Deatherage (67) 249 CA2d 363, 367 [57 CR 501].)

PG V(B)(4) Mandatory Statutory Instructions:

There are many instructions which are statutorily mandated upon request. For example:

Limited Admissibility (EC 403(c))

Judicial Notice (EC 457)

Witness Exercise of Privilege (EC 913(b))

In-Custody Informant (PC 1127a)

Child Witness (PC 1127f)

Other instructions are statutorily mandated even without request such as:

Burden of Proof (EC 502)

Availability of Written Instructions (PC 1093f)

Adjournment Admonition (PC 1122)

Expert Testimony (PC 1127b)

Flight (PC 1127c)

Prior Sexual Conduct of Victim (PC 1127d)

Jurors Are Exclusive Judges of Facts (PC 1127)

[See FORECITE CHK I for text of jury instruction statutes and Rules of Court.]

PG V(B)(5) Requested Instruction On Time- Or Jeopardy-Barred Lesser:

In People v. Ognibene (93) 12 CA4th 1286, 1288 [16 CR2d 96], the court held that the defendant may not waive the statute of limitations to obtain instruction on a time-barred lesser offense. (See FORECITE LRO VI.) The court has no jurisdiction to convict the defendant of a time-barred offense. (See People v. Diedrich (82) 31 C3d 263, 283-284 [182 CR 354].) In (People v. Carter (93) 19 CA4th 1236, 1254 [23 CR2d 888], the defendant sought instruction on a lesser offense for which he had already been convicted in a previous trial. The defendant offered to waive double jeopardy and contended that since double jeopardy is not jurisdictional, the reasoning of Diedrich is inapplicable. However, the Court of Appeal rejected this argument, concluding that the attempt at waiver had no effect on the pre-existing convictions. The Court of Appeal’s response to this argument is unpersuasive in that it fails to explain how jurisdiction over the double jeopardy offense does not exist.

Cowan v. Superior Court (96) 14 C4th 367, 376 [58 CR2d 458] held that a defendant may plead guilty to a lesser included offense that is time-barred by the statute of limitations or may request jury instructions on a time-barred lesser included or a lesser related offense, when the greater offense is not time-barred and the defendant expressly waives the statute of limitations.