PG X(A)

PG X(A) Standards of Review.

[See also FORECITE BIBLIO “Appeal” (BIBLIO AP)]

In performing its reviewing function, the appellate court works with the facts presented below and determines whether errors of law were committed. The appellate court defers to trial court factual findings, overturning them only if unsupported by substantial evidence. On the other hand, the appellate court does not defer to trial court legal conclusions, instead exercising independent review.

For claims which involve the determination of applicable legal principles, an appellate court reviews a trial court’s instruction “independently.” (People v. Alvarez (96) 14 C4th 155, 217 [58 CR2d 385].)

Standard Of Review vs. Standard Of Prejudice: The “standard of review” relates to what deference, if any, the appellate court must give the findings and rulings of the lower court. The “standard of prejudice” relates to the impact of any error found by the appellate court. Hence, regardless of what standard of review is used, the standard of prejudice should not be affected. For example, the appellate court may review an instructional decision independently under a de novo standard (see FORECITE PG X(A)(2)) but the standard of prejudice for that instructional error can be anything from per se reversal for structural error to the Watson harmless error standard for state law violations. (See FORECITE PG X(B)(1).) In the context of jury misconduct this distinction is especially important because generally juror misconduct raises a rebuttable presumption of prejudice. (See FORECITE PG X(L)(8).) [For briefing on this issue search for Brief Bank # B-979.]

PG X(A)(1) Rules For Determining Whether The Evidence Justifies An Instruction.

(1.1) Substantial Evidence: A criminal defendant is entitled to have the jury instructed on any defense supported by substantial evidence. (People v. Mayberry (1975) 15 CA3d 143, 151; see also Bradley v. Duncan (9th Cir. 2002) 315 F3d 1091 [right to instruction on defense theory raised by the evidence].) “Substantial evidence” in this specific context is defined as evidence which is sufficient to deserve consideration by the jury, that is evidence from which a jury composed of reasonable persons could have concluded that the particular facts underlying the instruction did exist. (People v. Cunningham (2001) 25 CA4th 926, 1008; People v. Wickersham (1982) 32 CA3d 307, 324; see also People v. Young (2005) 34 CA4th 1149, 1200 [the court need not give instructions based solely on conjecture and speculation].) In other words, the court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence. (People v. Flannel (1979) 25 CA3d 668, 685.) “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” (Ibid.)

Such principles also provide the correct standard of appellate review. In evaluating a claim of instructional error, the reviewing court must assume the jury could have believed the evidence of the party claiming error, if it rose to the level of substantial evidence. (See Henderson v. Harnischfeger Corp. (74) 12 C3d 663, 673-74 [117 CR 1]; Clement v. State Reclamation Bd. (50) 35 C2d 628, 643-44 [220 P2d 897]; Logacz v. Brea Community Hospital (99) 71 CA4th 1149, 1152 [84 CR2d 257]; Krotin v. Porsche Cars North America, Inc.(95) 38 CA4th 294, 298 [45 CR2d 10] [Henderson/Clement rule [that reviewing court must state the facts most favorable to the party alleging instructional error] “the customary rule of appellate review”]; Mock v. Michigan Millers Mutual Ins. Co. (92) 4 CA4th 306, 322 [5 CR2d 594].)

(1.2) Sufficiency Determination Must Be Made Without Reference To Credibility Of The Evidence: “The determination whether sufficient evidence supports the instruction must be made without reference to the credibility of that evidence. [Citation.]” (People v. Marshall (1996) 13 CA4th 799, 847; People v. Tufunga (1999) 21 CA4th 935, 944.) And, in determining whether substantial evidence was presented, the reviewing court is not free to determine that the evidence was “unreasonable or incredible.” (Ibid.) “However incredible a defendant’s testimony, he is nevertheless entitled to an instruction based on the hypothesis that it is entirely true, and it is prejudicial error to withdraw from the jury consideration of such evidence [by failing to instruct sua sponte]. [Citation].” (People v. Coleman (1970) 8 CA3d 722, 733; see also People v. Wilson (1967) 66 CA2d 749, 762; People v. Saldana (1984) 157 CA3d 443, 454 [where the defendant’s testimony or version of the evidence seems remote, the jury must be afforded the opportunity to consider it if it could be accepted by a reasonable juror or at least leave the jury with a reasonable doubt]; see also FORECITEPG V(A)(9) and PG V(B)(1).)

If the trial judge has given a related instruction which implies that the judge credited the defense evidence, then the judge’s opinion is entitled to “some weight” on appeal (e.g., intoxication instruction given as to one element implies that intoxication instruction should have been given as to other elements.) (People v. Stevenson (78) 79 CA3d 976, 985 [145 CR 301].)

(1.3) Evidence Must Be Viewed In Favor Of The Instruction. “In the context of jury instructions, the sufficiency standard requires the judge to view the evidence in the light most favorable to the party requesting the instruction.” (See, e.g., People v. Tufunga (1999) 21 CA4th 935, 944; Campbell v. General Motors Corp. (1982) 32 CA3d 112, 118; People v. Flannel (1979) 25 CA3d 668, 684-85.) This means that the judge must accept the evidence most favorable to the requesting party as true and disregard conflicting evidence. (People v. Flannel, supra.) The question for the judge is whether a reasonable jury could find the desired fact if the evidence of the party requesting the instruction is believed. If, after considering the evidence in this light, the judge is unsure whether the jury can find the desired fact, the judge must let the fact go to the jury. Under those circumstances, it is up to the jury to determine the existence of the facts upon which jury instructions are given. (Mendez, California Evidence (1993) §17.10, p. 347; see also FORECITE PG V(A)(9) and PG V(B) regarding the judge’s duty to instruct.)

This is a very important principle for appellate lawyers. Often appellate opinions on instructional error claims incorrectly begin by a recitation of the facts in a light most favorable to the prosecution. Therefore, every appellate brief claiming instructional error should be citing cases such as Henderson v. Harnischfeger Corp. (74) 12 C3d 663 [117 CR 1] when they provide the proper standard of appellate review of the issue in question.

In other words, in reviewing instructional error on appeal, the facts are not construed in a manner most favorable to the verdict below. Rather, the reviewing court “must assume that the jury might have believed the evidence upon which the (cause of action or defense of) the losing party was predicated, and that if the correct instruction had been given upon that request the jury might have rendered a verdict in favor of the losing party.” [Internal quotation marks and citations omitted.] (Clement v. State Reclamation Bd. (50) 35 C2d 628, 643-44 [220 P2d 897]; see also People v. Sojka (2011) 196 CA4th 733 [defendant’s testimony warranted defense theory instruction].)

[See Brief Bank # B-778 for briefing on this issue.]

(1.3.1) Defendant’s Testimony Constitutes Substantial Evidence Even If Implausible And Seriously Contradicted. The defendant’s testimony, though “less than convincing,” is sufficient to require instruction upon a lesser included offense even without a request, sua sponte. (People v. Tufunga (1999) 21 CA4th 935, 944; People v. Turner (1990) 50 CA3d 668, 690.) It follows a fortiori that “disbelief of a defendant’s version of the facts is not . . . a reason for rejecting a requested instruction [since] it is the jury’s function to weigh the evidence and determine credibility.” (People v. Sullivan (1989) 215 CA3d 1446, 1452; see also People v. Turner, supra, 50 CA3d at 690; People v. Jeffers (1996) 41 CA4th 917; People v. Lemus (1988) 203 CA3d 470, 477.) As the court of appeal observed in People v. Shelmire (2005) 130 CA4th 1044, 1059: “We have no doubt that a defendant’s story (his version of the events in question) constitutes substantial evidence, in and of itself, even if the story is implausible and seriously contradicted by other evidence.”

(See also FORECITE PG X(A)(1).)

(1.3.2) Neither Defendant’s Testimony Nor Affirmative Defense Evidence Is Necessary For Instruction On Defense Theory. An instruction must be given on the defense theory of the case even when the defendant doesn’t testify and the only evidence to support the theory is circumstantial. (See People v. Anderson (1983) 144 CA3d 55, 61-62; People v. De Leon (1992) 10 CA4th 815, 824 [“Substantial evidence of a defendant’s state of mind, including an ‘honest but unreasonable belief in the necessity to defend against imminent peril to life’ . . . may be present without defendant testimony”]; see also People v. Viramontes (2001) 93 CA4th 1256, 1262; People v. Castillo (1987) 193 CA3d 119, 126.)

This is especially true when the element involves intent or mental state. “The element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.” (People v. Falck (1997) 52 CA4th 287 at 299; see also People v. Anderson (1983) 144 CA3d 55, 64 [Mayberry defense of good-faith belief in consent].) “Substantial evidence of a defendant’s state of mind, including an ‘honest but unreasonable belief in the necessity to defend against imminent peril to life’ (CJ 5.17), may be present without the defendant’s testimony. [Citations.] [Original emphasis.]” (DeLeon, supra, at 824.)

“It is clear that inconsistency between an instruction and a defendant’s testimony is no reason to refuse an instruction, so long as substantial evidence supports the instruction . . . .” (People v. Elize (1999) 71 CA4th 605, 612; see alsoPeople v. Barton (1995) 12 C4th 186; People v. Villanueva (2008) 169 CA4th 41, 54-55 [right to instruction on self-defense despite defendant’s assertion of accident].) “It is elementary that a defendant’s state of mind is most often shown through circumstantial evidence which often prevails over the direct testimony of the defendant to the contrary.” (People v. Anderson (1983) 144 CA3d 55, 62.)

Moreover, when the defendant does have a burden of production, it isn’t necessarily one of producing affirmative defense evidence. So long as a rational juror could have a reasonable doubt on the issue a defense theory instruction is justified. (E.g., People v. Hill (1998) 17 C4th 800, 831-32 [affirmative defense evidence is not required when rational jurors could conclude the prosecution didn’t prove every element beyond a reasonable doubt]; People v. Rodriguez(1998) 17 C4th 253, 262-62 [same]; see also People v. Flood (1998) 18 C4th 470, 481 [“Because, under the due process guarantees of both the California and United States Constitutions, the prosecution has the burden of proving beyond a reasonable doubt each essential element of the crime [citation], the jury may find for the defendant even if the only evidence regarding an element of the crime favors the prosecution, but that evidence nevertheless falls short of proving the element beyond a reasonable doubt].) For example, in People v. Anderson (1983) 144 CA3d 55, 61-62 — where the only defense evidence that was testimony of the defendant’s young son who described the actions of the alleged “victims” — the Court of Appeal held this evidence raised a reasonable doubt on whether the defendant had a good-faith belief that the alleged “victims” consented (going to the element of intent), though the little boy didn’t know or opine on whether the defendant actually had that belief, and the defendant didn’t testify.

Similar principles arise, for example, in the context of lesser-included offense instructions. If the evidence is such that a rational juror could have reasonable doubt that defendant was guilty of the greater offense, then a lesser-included offense instruction is required sua sponte irrespective of the parties’ theories or arguments or the defendant’s testimony. (See e.g., People v. Wickersham (1982) 32 C3d 307, 330; People v. Elize (1999) 71 CA4th 605, 615; People v. Babich(1993) 14 CA4th 801, 807-08; People v. Saldana (1984) 157 CA3d 441, 456-57.)

See also FORECITE F 5.12 n7; PG III(D); PG V(K).

CAVEAT: The defense theory instruction should not refer to the defendant’s burden of producing evidence and should not imply that the defendant must “raise” or “create” a reasonable doubt. (FORECITE PG III(D).)

(1.3.3) Requested Instructions: Doubts Resolved In Favor Of Defendant. “Doubt as to the sufficiency of the evidence to require a particular instruction should be resolved in the defendant’s favor.” (California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) §1.3, p. 2-3; see also, People v. Wharton (91) 53 C3d 522, 570; People v. Wilson (67) 66 C2d 749, 762 [requested instruction]; People v. Randolph (93) 20 CA4th 1836, 1841; People v. Watts (76) 59 CA3d 80, 86 [sua sponte]; see also FORECITE PG X(A)(1).)

(1.3.4) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate. In evaluating whether the evidence is sufficient to justify an instruction the court must consider that the jurors may only accept part of the prosecution and/or defense evidence. (See FORECITE F 2.20g.)

Hence, the defense may have a right to instruction on inconsistent defense theories depending on what part of the testimony the jurors accept. (See FORECITE PG V(A)(6)(2).)

Nor are the jurors limited to a binary choice between the defense and prosecution evidence: “We recognize that we (like the jury) are not required to make a binary choice between the prosecution evidence and the defense evidence; if the evidence as a whole would support a third scenario, the trial court may be required to give instructions on that scenario. [Citation.]” (People v. Hernandez (2003) 111 CA4th 582, 589-90; see also People v. Wilkins (2013) 56 CA4th 333, 350 [“although the jury clearly disbelieved defendant’s testimony that he had not stolen the property from the Kane home, it could have believed other portions of his testimony…”]; People v. Barton (1995) 12 CA4th 186, 198 n.7;People v. Wickersham (1982) 32 CA3d 307, 328.)

(1.4) Applicability To Sua Sponte And Requested Instructions: These principles of review should apply to both the court’s sua sponte duty to instruct without request and upon request. For example, the court must instruct sua sponte upon a defense if it is supported by substantial evidence and not inconsistent with the defendant’s theory of the case. (People v. Burnham (86) 176 CA3d 1134, 1144 [222 CR 630].)

(1.4.1) Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence. The evidence sufficient to require instruction sua sponte is governed by principles of substantial evidence. If a defendant’s theory of the case is supported by substantial evidence, the court must instruct on the theory even if the evidence is not credible. (People v. Burnham (86) 176 CA3d 1134, 1143; see also, People v. Glenn (91) 229 CA3d 1461, 1465.) The trial court should not determine the credibility of witnesses, including the defendant. (People v. Barton (1995) 12 C4th 186, 201; People v. Marshall (96) 13 C4th 799, 847; In re Christian S. (1994) 7 C4th 768, 783; People v. Wickersham (82) 32 C3d 307, 324; People v. Vasquez (2006) 136 CA4th 1176, 1178-79.) Hence, if there is evidence in support of the instruction, the instruction must be given regardless of the source of the evidence. (See e.g., People v. Castillo (87) 193 CA3d 119, 125-26; see also, U.S. v. Hairston (9th Cir. 1995) 64 F3d 491.)

Even evidence which is “less than convincing” or subject to justifiable suspicion may constitute substantial evidence requiring instruction on a lesser-included offense. (People v. Turner (90) 50 C3d 668, 690; People v. Glenn (91) 229 CA3d 1461, 1467.) This includes testimony by the defendant. (Turner, supra, at 690; Glenn, supra, at 1467.)

(1.4.2) General Rules: A requested instruction must be given if the accused presents evidence sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded’ [citation]” that the particular facts underlying the instruction did exist. (People v. Flannel (1979) 25 CA3d 668, 684-85, fn 12; see also People v. Wilkins (2013) 56 CA4th 333, 347.) However, this standard does not require or permit the trial court to determine the credibility of witnesses, but it merely frees the court from an obligation to instruct upon a theory which the jury could not reasonably find to exist. (People v. Wickersham (1982) 32 CA3d 307, 324-25; see also U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 47 [“[A] criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof, no matter how tenuous the defense may appear to the trial court.”].)

See also FORECITE PG V(B)(1.4).

PG X(A)(2) De Novo Standard Of Review For Instructional Error:

The legal adequacy of an instruction is reviewed independently. (See People v. Alvarez (96) 14 C4th 155, 217-218.) “Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . we believe, is however predominantly legal. As such, it should be examined without deference.” (People v. Waidla (2000) 22 C4th 690, 733; see also People v. Cole (2004) 33 C4th 1158, 1217.) When a case involves instructional error, “the focus of review is on the court. Further, the standard is de novo. [Citation].” (People v. Ceja (93) 4 C4th 1134, 1148, fn 1 [17 CR2d 375], Mosk, dissenting.) On the other hand, if the question concerns the validity of the conviction, i.e., whether the verdict rendered by the jury was supported by substantial evidence, the focus of review should be on the jury and the standard should be “highly deferential.” (Ibid.; see also People v. Alvarez (96) 14 C4th 155, 217 [58 CR2d 385]; People v. Berryman (93) 6 C4th 1048, 1089 [25 CR2d 867].)

PG X(A)(3) “Reasonable Likelihood” Standard Applies To Ambiguous Instructions:

In Estelle v. McGuire (91) 502 US 62 [116 LEd2d 385, 399 at fn 4; 112 SCt 475], the Supreme Court clarified the standard of review to be utilized in determining whether an ambiguous jury instruction violates the federal constitution. The court specifically disapproved the standard set forth in Cage v. Louisiana (90) 498 US 39 [112 LEd2d 339; 111 SCt 328], and Yates v. Evatt (91) 500 US 391 [114 LEd2d 432, 449; 111 SCt 1884], holding that in construing the instruction the court should consider how reasonable jurors could have understood the charge as a whole. Instead, the court embraced the standard set forth in Boyde v. California (90) 494 US 370, 380 [108 LEd2d 316; 110 SCt 1190], which requires the reviewing court to inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the constitution. (See also Carriger v. Lewis (9th Cir. 1992) 971 F2d 329, 334; People v. Cain (1995) 10 C4th 1, 36.)

To show a “reasonable probability,” it is not necessary to prove that the jury “more probably than not” relied on the improper instruction. (Boyde v. California (90) 494 US 370, 379-80 [108 LEd2d 316; 110 SCt 1190]; see also People v. Howard (87) 190 CA3d 41, 48 [235 CR 223] [applying Strickland test].) Hence, in statistical terms, a reasonable probability is a “significant” but something-less-than 50 percent likelihood. (People v. Howard 190 CA3d at 48; see alsoWeeks v. Angelone (2000) 528 US 225 [145 LEd2d 727; 120 SCt 727] [must be more than a “slight possibility” that jury was misled].)

In Wade v. Calderon (9th Cir. 1994) 29 F3d 1312), the 9th Circuit criticized the California Supreme Court’s use of the “reasonable likelihood” standard in evaluating the failure to instruct upon an element of the special circumstance allegation. The 9th Circuit held that “Boyde does not sanction use of the ‘reasonable likelihood’ standard when the disputed instruction is erroneous on its face. Where a jury instruction omits a necessary element of a special circumstance, constitutional error has occurred. [Citation] We are not free to assume that the jurors inferred the missing element from their general experience or from other instructions, for the law presumes that jurors carefully follow the instructions given to them.” (Wade, 29 F3d at 1320-21.

(3.1) Common Sense Understanding Of Instructions Will Prevail. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” (Boyde v. California (90) 494 US 370, 380-81 [108 LEd2d 316; 110 SCt 1190] (footnote omitted); see also Brown v. Payton (2005) 544 US 133 [161 LEd2d 334; 125 SCt 1432, 1440].

(3.2) Whether Reviewing Court Should Not Interpret Instructions So As To Support The Judgment. In People v. Vang (2009) 171 CA4th 1120, 1129, the reviewing court declared that: “We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. [Citation to People v. Guerra (2006) 37 C4th 1067, 1148; People v. Martin (2000) 78 CA4th 1107, 1112.”

However, this standard is based on a pre-Estelle (Estelle v. McGuire (1991) 501 US 62, 72 [116 LEd2d at p. 399, 112 SCt at p. 482]) case law. Accordingly, it should not be used in post-Estelle cases.

Vang cites two cases in support of its proposition: Guerra and Martin. Guerra does not include the quoted language and Martin includes similar language but relied on a pre-Estelle case (People v. Laskiewicz (1986) 176 CA3d 1254, 1258) is so doing. Moreover, one of the cases relied upon by Laskiewicz was a civil case. (Kostecky v. Henry (1980) 113 CA3d 362, 375.) Therefore, because Estelle set forth a new rule in 1992 (see People v. Clair (1992) 2 C4th 629, 663 and because the Vang standard was, at least in part, derived from a civil case, the proper standard for post-1992 criminal cases should be the one enunciated by Estelle and followed by the California Supreme Court. Indeed, as of April, 2009 there is no California Supreme Court decision that uses the Vang standard.

This is so because in 1992 the supreme court expressly adopted the new standard articulated in Estelle:

Early in its present term, the United States Supreme Court embraced the “reasonable likelihood” standard for reviewing ambiguous instructions under the United States Constitution, inquiring whether there is a reasonable likelihood that the jury misconstrued or misapplied the words in violation of that document. (Estelle v. McGuire, supra, 501 US at p. ___ [116 LEd2d at p. 399, 112 SCt at p. 482].) We have already followed the court in this regard. (See People v. Kelly (1992) 1 C4th 495, 525.) We believe that the new test is proper for examining instructions under California law. We also deem it fit for use against prosecutorial remarks generally.

(People v. Clair, supra, 2 C4th at 663.)

PG X(A)(4) Standards Of Review: Distinction Between “Independent Review“ And “De Novo“ Review.

“. . . [U]nder the substantial evidence standard, the question is whether any rational trier of fact could find the legal elements satisfied beyond a reasonable doubt, whereas under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.” (In re George T. (2004) 33 C4th 620, 634.) However, “[i]ndependent review is not the equivalent of de novo review `in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes’ the outcome should have been different. [Citations.]” (Ibid.)

PG X(A)(5) Standard Of Review: Influenced By Importance Of Legal Rights Or Interests at Stake.

See People v. Ault (2004) 33 C4th 1250, 1265 [“. . . the People concede, the proper review standard is influenced in part by the importance of the legal rights or interests at stake.” (Emphasis in original.).]

PG X(A)(5.2) Standards Of Prejudice: “Reasonable Probability” vs. “More Likely Than Not.”

The reasonable likelihood and reasonable probability standards are little different. “[W]hile ‘reasonable possibility’ or ‘reasonable likelihood [ ]’ . . . and ‘reasonable probability’ express distinct levels of confidence concerning the hypothetical effects of errors on decisionmakers’ reasoning, the differences among the standards are slight . . . [T]he gap between all three of those formulations and ‘more likely than not’ is greater than any differences among them.” (Strickler v. Greene (1999) 527 US 263, 300 [144 LEd2d 286; 119 SCt 1936] (conc. & dis. opn. of Souter, J.).)

PG X(A)(6) Review Of Order Granting Motion For New Trial.

” . . . [T]he rule of independent appellate review need not apply to a trial court determination that conceded juror misconduct was prejudicial, thus warranting a new trial, even if the prejudice issue is a mixed question of law and fact.”People v. Ault (2004) 33 C4th 1250, 1265:

Though assessments of prejudice may, and often do, involve the application of law to facts, they depend heavily on the unique circumstances of the particular case, and usually are “so factually idiosyncratic and highly individualized as to lack any [significant] precedential value.” [Citation.] Such analyses provide little in the way of general rules or guidelines to govern conduct in future situations. Hence, the need for unified precedent does not weigh strongly in favor of independent review of a trial court’s determination, for purposes of a new trial motion, that prejudice arose from error or misconduct in proceedings before that court.

Moreover, it is the trial court that has a “first-person vantage” [citation] on the effect of trial errors or irregularities on the fairness of the proceedings in that court. This is certainly true in cases of juror misconduct, when the trial court has taken evidence, including the testimony of the jurors themselves, for the specific purpose of determining whether misconduct gave rise to a substantial likelihood that one or more panelists were actually biased.

A trial court’s finding of prejudice is based, to a significant extent, on “first-hand observations made in open court,” which that court itself is best positioned to interpret. [Citations.] Thus, where the effect of the ruling below is simply that the case will be retried free of the error or misconduct that infected the original proceeding, we may conclude that “the concerns of judicial administration tip in favor of the trial court” [citations] and suggest a deferential standard of appellate review. (People v. Ault (2004) 33 C4th 1250, 1267-68.)

PG X(A)(7) Review Of Order Granting Habeas Petition.

“While all intendments traditionally favor a new trial order, habeas corpus is a separate, collateral proceeding that attacks a presumptively valid judgment. `For purposes of collateral attack, all presumptions favor the truth, accuracy and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands. . . [Citations.]'” (People v. Gonzalez (90) 51 C3d 1179, 1260, first italics added.) “This presumption against the validity of a collateral attack on a conviction and sentence weighs strongly toward close appellate review of all mixed law and fact determinations leading to a lower court’s decision to grant relief on habeas corpus.” (People v. Ault (2004) 33 C4th 1250, 1268; see also In re Carpenter (95) 9 C4th 634.)

PG X(A)(8) Juror Misconduct: Standard Of Review – Review Of Denial Of Motion For New Trial.

(See also FORECITE PG X(L)(7).)

PG X(A)(9) Juror Misconduct: Standards Of Prejudice – General Standard Of Prejudice.

(See FORECITE PG X(L)(8).)

PG X(A)(10)(a) Standard Of Review: Federal Habeas Where State Court Did Not Reach The Issue.

(See Lewis v. Mayle (9th Cir. 2004) 391 F3d 989 [de novo review where state appellate court affirmatively declined to reach the waiver of conflict of counsel]; cf., Delgado v. Lewis (9th Cir. 2000) 223 F3d 976 [objectively unreasonable test applied when state court makes decision but provides no rationale].)

PG X(A)(10)(b) Standard Of Review: Jury Instruction Error On Federal Habeas.

Jury instruction issues generally are matters of state law for which federal habeas relief is not available. (See Estelle v. McGuire (1991) 502 US 62, 71-72 [116 LEd2d 385; 112 SCt 475].) To merit relief when an allegedly erroneous jury instruction is given, petitioner must show that the “the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process.” (Id. at 72; Henderson v. Kibbe (1977) 431 US 145, 154 [52 LEd2d 203; 97 SCt 1730]; Dunckhurst v. Deeds (9th Cir. 1988) 859 F2d 110, 114.) Moreover, the allegedly erroneous instruction must be considered in the context of the instructions as a whole and the entire trial record. (See Estelle, supra; United States v. Frady (1982) 456 US 152, 169 [71 LEd2d 816; 169, 102 SCt 1584]; Cupp v. Naughten (1973) 414 US 141, 147 [38 LEd2d 368; 94 SCt 396].)

PG X(A)(11) Standard Of Review: Ineffective Assistance Of Counsel.

(See People v. Callahan (2004) 124 CA4th 198 [abuse of discretion standard applies to granting of new trial motion for ineffective assistance of counsel]; see also People v. Ault (2004) 33 C4th 1250, 1255 [new trial granted on juror misconduct grounds].)

PG X(A)(12) Standard Of Review: Diminished Capacity:

See People v. Dunkle (2005) 36 C4th 861, 911.

PG X(A)(13) Statutory Construction Re: Jury Instructions Subject To De Novo Review.

“Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.]” (People v. Ramos (2008) 163 CA4th 1082, 1088.) In considering whether a jury instruction should have been given, “[q]uestions of statutory interpretation are subject to de novo review as well.” (People v. Sisuphan (2010) 181 CA4th 800, 806.)