PG X(D) General Rules in Evaluating Prejudicial Effect of Instructions.
The courts have developed a number of general rules which are used in evaluating the existence and/or impact of instructional error. For example, in LeMons v. Regents of U.C. (78) 21 C3d 869, 876 [148 CR 355], the Supreme Court identified a number of factors to be considered in measuring the prejudicial effect of instructional error after noting that there is “no precise formula for measuring the effect of an erroneous instruction …” The factors identified byLeMons were the following: (1) the degree of conflict in the evidence on critical issues; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect; (3) whether the jury requested a re-reading of the erroneous instruction or of related evidence; (4) the closeness of the jury’s verdict; (5) the effect of other instructions in remedying the error.
Other examples of general instructional rules are the following:
PG X(D)(1) Jurors Assumed To Be Intelligent:
Reviewing courts presume that jurors are intelligent beings capable of “understanding” and “correlating” all instructions given to them. (See People v. Archer (1989) 215 CA3d 197, 204; People v. Billings (81) 124 CA3d 422, 427-28.) However, there is nothing in the juror qualification process that justifies this presumption. In fact the official California Courts’s website states that to be a juror, “All you need is an open mind and a readiness to work with the other jurors to make a decision.” (http://www.courtinfo.ca.gov/jury/ basics/htm.) In fact, the only specific requirement which is in any way related to a juror’s ability to “understand” and “correlate” jury instructions has to do with the juror’s ability to speak and understand English:
Qualifications for Jury Service (http://www.courtinfo.ca.gov/jury/basics.htm#qualifications)California law says you are qualified to be a juror if you:
* Are a U.S. citizen
* Are at least 18 years old
* Can understand English enough to understand and discuss the case
* Are a resident of the county that sent you the jury summons
* Have not served on a jury in the last 12 months
* Are not currently on a grand jury or on another trial jury
* Are not under a conservatorship
* Have had your civil rights restored if you were convicted of a felony or malfeasance while holding public office
PG X(D)(2) Jurors Presumed To Follow The Instructions:
Jurors are presumed to follow the court’s instructions. (People v. Hardy (92) 2 C4th 86, 208 [5 CR2d 796].) “Generally the jury is presumed to follow the trial court’s instructions… [but] … [t]his rule is not absolute.” (People v. Williams(99) 69 CA4th 474 [81 CR2d 611].) Hence, in Bollenbach v. U.S. (46) 326 US 607, 613-14 [90 LEd2d 350], the court rejected the government’s suggestion “that the lay jury will know enough to disregard the judge’s bad law if in fact he misguides them.” “The court presumes that jurors, conscious of the gravity of their risk, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.” (Francis v. Franklin (85) 471 US 307, 324-25, fn 9.) “Out of necessity, the appellate court presumes the jurors faithfully followed the trial court’s directions, including erroneous ones.” (People v. Lawson (87) 189 CA3d 741, 748 [234 CR 557].)
PG X(D)(3) Specific Controls Over General:
Jury instructions of a specific nature control over instructions containing general provisions. (People v. Stewart (83) 145 CA3d 967, 975 [193 CR 799].) “It is particularly difficult to overcome the prejudicial effect of a misstatement when the bad instruction is specific and the supposedly curative instruction is general. [Citation.] It is where the specific instruction is good, and the general one bad, that an error ‘is usually cured.’ [Citation.]” (Buzgheia v. Leasco Sierra Grove (97) 60 CA4th 374, 395 [70 CR2d 427].)
Hence, instruction on a generally correct standard is not sufficient to satisfy due process if an erroneous exception to the standard was presented to the jury. (Gibson v. Ortiz, (9th Cir. 2004) 387 F3d 812, 823-24.) “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (85) 471 US 307, 322 [85 LEd2d 344; 105 SCt 1965].
“When a court gives the jury instructions that allow it to convict a defendant on an impermissible legal theory, as well as a theory that meets constitutional requirements, `the unconstitutionality of any of the theories requires that the conviction be set aside.'” (Boyde v. California (90) 494 US. 370, 379-80 [108 LEd2d 316; 110 SCt 1190].) “…[W]hen alternate theories are involved, it is `equally likely that…the verdict rested on an unconstitutional ground’ as on a constitutional one.” (Gibson v. Ortiz, 387 F3d 812, 825 [citing and quoting Boyde v. California (1990) 494 US 370, 380].)
PG X(D)(4) Instructions Considered As Whole:
Whether a jury has been correctly instructed is not to be determined from consideration of a part of an instruction or one particular instruction, but from the entire charge of the court. (People v. Stewart (83) 145 CA3d 967, 975 [193 CR 799].)
PG X(D)(5) Applying Instructional Principle To One Aspect Of The Charge And Not To Another.
When a generally applicable instruction, such as CJ 2.02, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error. (People v. Salas (76) 58 CA3d 460, 474 [129 CR 871].) This is so because, as a matter of common sense, the jurors are likely to conclude that the general instruction only applies to the issue to which it is specifically made applicable. (See United States v. Crane(9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense”]; see also Kansas v. Marsh (2006) 548 US 163 [165 LEd2d 429; 126 SCt 2516, 2527] [“a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge” (internal citations and quote marks omitted)]; Boyde v. California (90) 494 US 370 [108 LEd2d 316; 110 SCt 1190] [common sense understanding of instruction as a whole will prevail].)
As the Supreme Court reasoned in People v. Dewberry (59) 51 C2d 548, 577 [334 CR 852]:
The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.
Such reasoning is also consistent with similar reasoning used in statutory interpretation. See People v. Drake (77) 19 C3d 749, 755 [139 CR 720] [in statutory construction, omission of provision from similar statute shows different intent];United States v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense”].)
PG X(D)(6) Jury Questions As Evidence That Original Instructions Were Not Clear:
The United States Supreme Court has frequently accepted jury questions as evidence that the trial judge’s original instructions were not sufficiently clear. (See, e.g., Shafer v. South Carolina (2001) 532 US 36 [149 LEd2d 178; 121 SCt 1263, 1273] [“Shafer’s jury left no doubt about its failure to gain from defense counsel’s closing argument or the judge’s instructions any clear understanding of what a life sentence means”]; Simmons v. South Carolina (94) 512 US 154, 178 [129 LEd2d 133; 114 SCt 2187] [“That the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a life-sentenced defendant will be released from prison”]; Bollenbach v. United States (46) 326 US 607, 612 [90 LEd2d 350; 66 SCt 402] [“The jury’s questions … clearly indicated that the jurors were confused”].) The 9th Circuit has done so as well. (E.g., U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050, 1053;Belmontes v. Woodford (9th Cir. 2003) 350 F3d 861, 903 n 19 [“questions strengthen our conviction that the original and supplemental instructions did not convey to the jury that it could consider non-statutory mitigating evidence”];Morris v. Woodford (9th Cir. 2001) 273 F3d 826, 840 [citing fact that jury asked mid-deliberation question as evidence that it was confused by the original instruction]; United States v. Frega (9th Cir. 1999) 179 F3d 793, 809 [stating that a reviewing court may infer from the jury’s questions that it was confused about a controlling legal principle].)
However, even if the jurors do not ask questions, the reviewing court may still conclude that the instructions were confusing. (See Kelly v. South Carolina (2002) 534 US 246 [122 SCt 726, 733; 151 LEd2d 670] [“Time after time appellate courts have found jury instructions to be insufficiently clear without any record that the jury manifested its confusion”]; see also Belmontes, 350 F3d at 903, n 19.) “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 indication of perplexity on their part.” (Kelly v. South Carolina (2002) 534 US 246, 256.) “To hold otherwise would condition our ability to redress serious constitutional violations on such subjective vagaries of fate as whether the jurors happened to ask a question instead of embarking boldly down the wrong path.” (Belmontes, 350 F3d at 903, n 19.)
PG X(D)(7) Superfluous Jury Instructions May Be Misleading
“It has long been the law that it is error to charge the jury on abstract principles of law not pertinent to the issues in the case. [Citation] The reason for the rule is obvious. Such an instruction tends to confuse and mislead the jury by injecting into the case matters which the undisputed evidence shows are not involved. [Citations].” [Internal quotation marks omitted.] (People v. Mills (2012) 55 CA4th 663, 672-682 [instruction on presumption of sanity at guilt trial “only complicates matters at the guilt phase by injecting the subject of sanity before it is at issue”]; see also, e.g., People v. Camino (2010) 188 CA4th 1359, 1381 [jury misled by superfluous firearm enhancement which was not supported by the evidence].) Thus “[i]t 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. Guiton (1993) 4 CA4th 1116, 1129; see also People v. Wallace (2008) 44 CA4th 1032, 1076; People v. Watts (1976) 59 CA3d 80, 87.) However, a superfluous instruction is generally held harmless unless it “creates a substantial risk of misleading the jury to the defendant’s prejudice.” [Citations and internal quote marks omitted.] (People v. Von Villas (1992) 11 CA4th 175, 238; see also People v. Mathson (11/7/2012, C063527) 210 CA4th 1297 [instructing on theory of liability not supported by the evidence “could be potentially confusing for the jury”].)
