PG X(E) Helpful Rules And Standards For Showing Prejudice. PG X(E)(1) Jury Instructions Are Of Critical Importance: Jury instructions provide essential guidance to the jury. (See Carter v. Kentucky (81) 450 US 288, 302 [67 LEd2d 241]; Bollenbach v. U.S. (46) 326 US 607, 612 [90 LEd2d 350]; People v. Thompkins (87) 195 CA3d 244, 250 [240 CR 516].) “Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky (81) 450 US 288, 302 [67 LEd2d 241].) “It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.” (Gregg v. Georgia (76) 428 US 153, 193 [49 LEd2d 859] [opn. of Stewart, Powell, and Stevens, JJ.].) “Discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.” (Bollenbach v. U.S. (46) 326 US 607, 612 [90 LEd 350]; U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050, 1053; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838.) “Many lawyers share the belief that instructions are given little consideration in the deliberations of jurors. While this may be true in some cases, I believe they follow them to the extent they understand and give up only when they become bewildered.” (Werkman v. Howard Zink Corp. (50) 97 CA2d 418, 428 [218 P2d 43], Shinn, P.J. concurring.)
PG X(E)(2) Influence Of The Judge: “The charge [to the jury] is that part of the whole trial which probably exercises the weightiest influence upon the jurors.” (Andres v. U.S. (48) 333 US 740, 765 [92 LEd 1055] [conc. opn. of Frankfurter, J.].) “‘The influence of the trial judge on the jury is necessarily and properly of great weight,’ [citations], and jurors are ever watchful of the words that fall from him.” (Bollenbach v. U.S. (46) 326 US 607, 612 [90 LEd 350]; see also U.S. v. Wolfson (5th Cir. 1978) 573 F2d 216, 221 [judge’s words “‘carry an authority bordering on the irrefutable.’ [Citation]”].) “Words of instruction of the trial judge are more likely to effect prejudice than the words of argument of the prosecutor.” (People v. Morse (64) 60 C2d 631, 650 [36 CR 201].) “‘Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials.’ [Citation].” (People v. Lee (79) 92 CA3d 707, 715-16 [155 CR 128].) “[I]t is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” (Quercia v. United States (33) 289 US 466, 470 [77 LEd 1321; 53 SCt 698], quoting Starr v. United States (1894) 153 US 614, 626 [38 LEd2d 841; 14 SCt 919] [emphasis added]; see also People v. Cook (83) 33 C3d 400, 413 [189 CR 159]; People v. Rodriguez (86) 42 C3d 730, 770 [230 CR 667].) “It is a matter of common knowledge that jurors … are very susceptible to the influence of the judge. … [J]urors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict.” (People v. Frank (25) 71 CA 575, 581 [236 P 189].)
PG X(E)(3) Cumulative Prejudice: The combined effect of instructional errors and/or evidentiary errors may create cumulative prejudice. (See People v. McGreen (80) 107 CA3d 504, 519-20 [166 CR 360]; People v. Buffum (53) 40 C2d 709, 726 [256 P2d 317]; People v. Ford (64) 60 C2d 772, 798 [36 CR 620]; see also People v. Hill (98) 17 C4th 800, 845 [72 CR2d 656] [numerous instances of prosecutorial misconduct and other errors at both stages of the death penalty trial were cumulatively prejudicial: the combined (aggregate) prejudicial effect of the errors was greater than the sum of the prejudice of each error standing alone].) The “litmus test“ for cumulative error “is whether defendant received due process and a fair trial.“ (People v. Kronemyer (1987) 189 CA3d 314, 349 [234 CR 442]; see also People v. Cuccia (2002) 97 CA4th 785 [118 Cr2d 668].) When errors of federal constitutional magnitude combine with non-constitutional errors, the combined effect of the errors should be reviewed under a Chapman standard. (People v. Williams (71) 22 CA3d 34, 58-59 [99 CR 103]; see also, In re Rodriguez (81) 119 CA3d 457, 469-70 [174 CR 67].) Cumulative errors may so infect the trial with unfairness as to make the resulting conviction a denial of 14th Amendment due process. (See FORECITE PG VII(C)(18).) [See Brief Bank # B-664 for a sample brief arguing that cumulative error principles require reversal.]
PG X(E)(4) Misinstruction On A Vital Issue In A Close Case: “Unless instructional error is otherwise cured by other properly given instructions which enable the trier of fact properly to resolve the factual issue in dispute, it cannot be concluded that such instructional error which goes to the heart of the defense is harmless. [Citation].” (People v. Louie (84) 158 CA3d Supp 28, 45 [205 CR 247].)
PG X(E)(5) Prosecutorial Exploitation Of The Error In Argument:
PG X(E)(5)(a) Reference To Erroneous Instructions: Prosecutorial reliance upon an erroneous instruction during closing argument is a factor tending to show prejudice. (See People v. Roder (83) 33 C3d 491, 505 [189 CR 501]; People v. Hannon (77) 19 C3d 588, 603 [138 CR 885].)
PG X(E)(5)(b) Exploitation Of Erroneous Failure To Instruct: A finding of prejudice can also be supported by the fact that the prosecutor, during closing argument, took advantage of an erroneous failure to instruct. (See Pool v. Oakland (86) 42 C3d 1051, 1007 [232 CR 528]; People v. Brady (87) 190 CA3d 124, 138 [235 CR 248]; People v. Martinez (86) 188 CA3d 19, 22 [232 CR 736].)
PG X(E)(6) Defense Counsel Forced to Make Closing Argument Without Support of Instruction: When the court refuses to give correct instructions and defense counsel is forced to argue the case without the support of an instruction to which the defense is entitled, the force of its argument is seriously undermined. The presentation of an argument which is not supported by the instructions may also cause the jurors to suspect that defense counsel is trying to mislead them on the law, further weakening the credibility of the defense. “When the general charge on an issue appears to exclude the specific defense being argued by counsel, as it did here, that argument, unsupported by an instruction to which the defendant is entitled, may be more harmful than helpful.” (U.S. v. Duncan (6th Cir. 1988) 850 F.2d 1104, 1118; see also, People v. Rivera (84) 157 CA3d 736, 744 [203 CR 842]; Wright v. U.S. (9th Cir. 1964) 339 F2d 578, 580; see also Burr and Feffer, Preparation and Presentation of Case and Argument, Calif. Crim. Law (Cont. Ed. Bar 1986) [counsel should tie argument to key instructions].)
PG X(E)(7) Erroneous or Incomplete Instructions In Response To Jury Inquiry: The likelihood of prejudice is increased when the erroneous or incomplete instructions are reread at the jury’s request during deliberations. (See, e.g., People v. Beeman (84) 35 C3d 547, 562-63; see also People v. Miller (2008) 164 CA4th 653 [error in supplemental instruction was prejudicial because the jurors’ question focused on the very element which was omitted in the supplemental instruction]; People v. Thompkins (87) 195 CA3d 244, 250; People v. Singleton (87) 196 CA3d 488, 493-94.)
PG X(E)(8) Correct Preinstruction Does Not Cure Error: The delivery of correct instructions at the beginning of the trial does not cure errors in the instructions given to the jurors before they begin their deliberations. (See People v. Vann (74) 12 C3d 220, 226, fn 6 [115 CR 352]; see also People v. Valenzuela (77) 76 CA3d 218, 222 [142 CR 655]; People v. Elguera (92) 8 CA4th 1214, 1219 [10 CR2d 910] [failure to repeat burden of proof instruction given during voir dire was prejudicial]; compare People v. Mayo (2006) 140 CA4th 535 [failure to give CJ 2.90 on presumption of innocence was not error and/or was harmless].)
PG X(E)(8.1) Conflict Between Instructions Does Not Clarify Which Applies: A conflict between instructions does not clarify either instruction. As the United States Supreme Court observed in Francis v. Franklin (85) 471 US 307, 322 [85 LEd2d 344; 105 SCt 1965] “[N]othing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. 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 jury applied in reaching their verdict.” (People v. Guzman DEPUBLISHED (99) 73 CA4th 103, 118 [86 CR2d 164]; see also People v. Noble (2002) 100 CA4th 184, 191 [121 CR2d 918] [contradictory instructions on burden of proof in MDO proceeding made it impossible to determine whether the jury reached its verdict using the correct burden].) [See Opinion Bank # O-251 for a copy of the Guzman opinion.]
PG X(E)(8.2) Conflict Between Definition Of Elements In Preamble And Body Of The Instruction. Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741; see also People v. Collom UNPUB’D (10/5/2010, C062499) 2010 Cal. App. Unpub. LEXIS 7943, 12-13 [Reversible error to omit the requirement of “violence or menace” from Element 1 of CC 1240. Error not “cured” by including “violence or menace” in the preamble describing the charge and in other definitional instructions].)
PG X(E)(9) Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction: It is not uncommon for the oral instructions to vary from the written instructions either due to misreading of the written instructions by the judge or due to the inadvertent omission of a written instruction from the packet of instructions sent into the jury room. In such a case, the reviewing court must presume that the jury followed the written version. (People v. McLain (1988) 46 C3d 97, 111, fn 2; see also People v. Garceau (1993) 6 C4th 140, 189 [misreading of oral instruction held harmless because jury received correct version in its written form].)
“To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.” (People v. Wilson (2008) 44 CA4th 758, 803; but see Id. at 804 [“it is possible the jury followed the oral instruction”]; compare People v. Anguiano UNPUBLISHED (4/23/2013, F062011) 2013 WL 1736797 [relying on oral instead of written instructions when there was “no indication that [the jury] was aware of the oral and written versions of CALCRIM 1401 since it did not ask any questions on this point”].)
But see: PG V(I)(B)(1) [Case By Case Analysis]; PG V(I)(B)(4) [Substantial Discrepancies: Oral Instructions Should Control] PG V(I)(B)(5) [Failure To Orally Instruct On An Individual Written Instruction]
PG X(E)(10) Correct Supplemental Instruction Does Not Cure Error: [See FORECITE PG IX(H)(3).]
PG X(E)(11) Response To Jury Re-instruction Request Must Be “Balanced”: [See FORECITE PG IX(C)(2).]
PG X(E)(12) Prompt Return Of Verdict:
PG X(E)(12)(a) Verdict After Jury Hears Erroneous Instruction: If the jury returns a verdict shortly after the delivery of an erroneous supplemental instruction, the instructional error was likely to have been prejudicial. (People v. Markus (78) 82 CA3d 477, 482 [147 CR 151]; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158; see also U.S. v. Petersen (9th Cir. 1975) 513 F2d 1133-36 [quick return of verdict and fact that jury had twice previously declared itself to be deadlocked showed prejudice]; Krische v. Smith (2nd Cir. 1981) 662 F2d 177, 179-80 [similar to Petersen].)
PG X(E)(12)(b) Verdict After Jury Hears Incomplete Charge: If the court erroneously omits an instruction which, if given, would probably have caused the jury to spend a considerable amount of time scrutinizing the evidence, the quick return of a verdict tends to show that the defendant did not receive the thorough consideration of the evidence to which he/she was entitled. (See People v. Ruiz (70) 11 CA3d 852, 864-65 [90 CR 110].)
PG X(E)(12)(c) Short Deliberation Does Not Cure Prejudice: For example, in People v. Bryant REV GTD/REVERSED/DEPUBLISHED (11/16/2011, S196365) 198 CA4th 134, 158, the attorney general argued that the failure to instruct on a lesser included offense was harmless because the jurors “only” deliberated four hours over a two-day period. The reviewing court was not persuaded: “Nor are we persuaded that this court may affirm the judgment based on the ‘relatively short [jury] deliberation[s]’ and the fact that the jury reached a verdict 45 minutes after the court reporter completed a read back of Bryant’s testimony. [Footnote omitted.] To do so would amount to little more than speculation as to what occurred during those deliberations.” (Ibid.)
PG X(E)(13) Return Of Verdict By Previously Deadlocked Jury: If a jury, which has declared itself to be deadlocked, returns a verdict after hearing erroneous supplemental instructions, it is likely that the erroneous instructions were the factor which produced agreement. (See, e.g., People v. Thompkins (87) 195 CA3d 244, 251-52 [240 CR 516]; see also U.S. v. Petersen (9th Cir. 1975) 513 F2d 1133, 1136; Krische v. Smith (2nd Cir. 1981) 662 F2d 177, 179-80.)
PG X(E)(14) Cross-Examination Cannot Cure Instructional Error: Cross-Examination by defense counsel is not necessarily an adequate substitute for correct instructions delivered by the court. (See People v. Wright (88) 45 C3d 1126, 1150, fn 22 [248 CR 600].)
PG X(E)(15) Jury May Accept Some Portions of a Witness’ Testimony And Reject Other Portions: People v. Geiger (84) 35 C3d 510, 531 [199 CR 45] People v. Wickersham (82) 32 C3d 307, 328 [185 CR 436] People v. Thornton (74) 11 C3d 738, 755 [114 CR 467] People v. Ceja (94) 26 CA4th 78, 86 [31 CR2d 475] People v. LaSalle (80) 103 CA3d 139, 145-46 [162 CR 816]
PG X(E)(16) Errors In Superfluous or Irrelevant Instructions: See FORECITE PG X(D)(7).
PG X(E)(17) Instruction In Absence Of Counsel: Instruction or reinstruction of the jury in the absence of defendant and his counsel violates PC 1138 and the state and federal (6th and 14th Amendments) constitutional rights to assistance of counsel and due process. (People v. Hawthorne (92) 4 C4th 43, 67-71 [14 CR2d 133].) The error should be considered prejudicial if “counsel could have taken some action on the defendant’s behalf to amplify, clarify or modify the supplemental instruction.” (cf. Hawthorne 4 C4th at 68; People v. Dagnino (78) 80 CA3d 981, 988 [146 CR 129].) [For additional briefing on this issue, ask for Brief Bank #571.]
PG X(E)(18) Juror Agreement To Disregard Court’s Instructions: A juror agreement to disregard a jury instruction is serious juror misconduct and may be proven by juror declarations. (People v. Perez (92) 4 CA4th 893, 908 [6 CR2d 141]; see also People v. Hord (93) 15 CA4th 711 [19 CR2d 55].)
PG X(E)(19)(1) Inability Of Limiting Instructions To Cure Error. PG X(E)(19)(1.1) Inability Of Limiting Instructions To Cure Evidentiary Error. It is often assumed that limiting and cautionary instructions can cure or protect against prejudicial matters to which the jurors were exposed. (See, e.g., People v. Gutierrez UNPUBLISHED (4/17/2013, G046515) 2013 WL 1636464.) However, “[I]t is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect.” (People v. Gibson (76) 56 CA3d 119, 130 [128 CR 302]; see also Krulewitch v. U.S. (49) 336 US 440, 453 [93 LEd 790] Jackson, J. concurring [“The naive assumption that prejudicial effects can be overcome by instructions to the jury, [citation], all practicing lawyers know to be unmitigated fiction. [Citation]”]; see also Crooks v. Glens Falls Idem. Co. (54) 124 CA2d 113, 119 [268 P2d 203] [cautionary instruction does not cure prejudicial effect of partisan comments by the judge]; People v. Jackson (70) 3 CA3d 921, 931 [83 CR 829]; People v. Guerrero (76) 16 C3d 719, 729 [129 CR 166] [“no limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors’ minds [the inadmissible evidence]”; People v. Fabert (82) 127 CA3d 604, 610 [179 CR 702] [courts have expressed serious reservations about the efficacy of curative or limiting instructions to cure Doyle (Doyle v. Ohio (76) 426 US 610 [49 LEd2d 91; 96 SCt 2240]) violations]; People v. Coleman (85) 38 C3d 69, 94 [211 CR 102] [limiting instruction inadequate to ensure that jurors would consider inflammatory hearsay only for limited purpose of supplying basis for expert opinion]; People v. Williams (99) 69 CA4th 474 [81 CR2d 611] [limiting instruction did not cure error in informing jury about defendant’s withdrawn plea of guilty]; see also, U.S. v. Johnson (5th Cir. 1977) 558 F2d 1225, 1230; Reid v. Riddle (4th Cir. 1977) 550 F2d 1003, 1004; U.S. v. Impson (5th Cir. 1976) 531 F2d 274, 278.) Evidence of such a prejudicial character will “find permanent lodgment in [a juror’s] mind ….” (People v. Albertson (44) 23 C2d 550, 577 [145 P2d 7] quoting Wharton’s Criminal Evidence, § 360, p. 567.) “You can’t unring a bell.” (People v. Hill (98) 17 C4th 800 [72 CR2d 656] [internal quotation marks and citations omitted]. “The juror does not possess that trained and disciplined mind which enables him … to discriminate between that which he is permitted to consider and that which he is not. Because of this lack of training, he is unable to draw conclusions entirely uninfluenced by the irrelevant prejudicial matters within his knowledge ….” (Ibid.; see also, People v. Williams (70) 11 CA3d 970, 977-78 [90 CR 292].) Accordingly, even a full and forceful admonition may be inadequate “to overcome the substantial danger of undue prejudice ….” (People v. Allen (78) 77 CA3d 924, 935 [144 CR 6].) For example, the following cases have held admonitions to be insufficient: People v. Gibson (76) 56 CA3d 119 [128 CR 302] [other crimes evidence]; People v. Roof (63) 216 CA2d 222, 225 [30 CR 619] [prior charge]; People v. Johnson (64) 229 CA2d 162, 170 [40 CR 105] [opinion of police officer that defendant was guilty]; People v. Ozuna (63) 213 CA2d 338, 342 [28 CR 663] [“ex-convict”]; People v. Figuieredo (55) 130 CA2d 498, 505-06 [279 P2d 200] [defendant “did time”].) (See also, People v. Matteson (64) 61 C2d 466, 469-70 [39 CR 1]; People v. Hardy (48) 33 C2d 52, 61-62 [198 P2d 865]; U.S. v. Figueroa (2nd Cir. 1980) 618 F2d 934, 943; U.S. v. Schiff (2nd Cir. 1979) 612 F2d 73, 82.) As a further example, People v. Wagner (75) 13 C3d 612 [119 CR 457] is especially instructive. There the prosecution asked a number of questions which implied that the defendant, who was charged with a narcotics offense, had been involved in prior drug related activity. Despite the defendant’s negative answer to all the questions, a full admonition by the trial court and a specific jury instruction, the court held that the prejudice had not been cured. (Id. at p. 621.) (See also 18 CACJ Forum, No. 5, at p. 49 “Prejudicial Impact of Pretrial Publicity”; FORECITE BIBLIO “Empirical Research” (BIBLIO E).) The court “normally presume[s] that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s instructions ….” (Greer v. Miller (87) 483 US 756, 764 [97 LEd2d 618; 107 SCt 3102].) This presumption, however, is “rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation ….” (Richardson v. Marsh (87) 481 US 200, 208 [95 LEd2d 176; 107 SCt 1702].) With regard to “an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt.” (Richardson 481 US at 208; see also U.S. v. Kallin (9th Cir. 1995) 50 F3d 689, 694-95; U.S. v. Copelin (DC Cir. 1993) 996 F2d 379 [limiting instruction must be given immediately after evidence of defendant’s prior conviction is admitted for purposes of impeachment]; see also FORECITE F 2.09 n2.) “Otherwise stated, one ‘cannot unring a bell’: ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.'” (Dunn v. United States, 307 F2d 883, 886 (5th Cir. 1962).)
PG X(E)(19)(1.2) Jurors’ Inability To Perform Mental Gymnastics.
See People v. Quintanilla DEPUBLISHED (2005) 132 CA4th 572, 583 [noting but not deciding whether jurors can perform “mental gymnastics” requiring application of different standards of proof to the same evidence].
Subsequent History Note: The United States Supreme Court granted certiorari for People v. Quintanilla, sub nom. Quintanilla v. California (2007) ___ US ___ [167 LEd2d 40; 127 SCt 1215]. Judgment was vacated and the case remanded to the Court of Appeal for further consideration in light of Cunningham v. California (2007) 549 US 270 [166 LEd2d 856; 127 SCt 856]. On remand, the Court of Appeal filed an unpublished opinion on July 31, 2007.
PG X(E)(19)(2) Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter: Cautionary/limiting instructions may actually heighten the prejudice that they were meant to alleviate. (See e.g., People v. Garcia (84) 160 CA3d 82, 93[“A strong argument can be made that [an admonition to disregard the defendant’s courtroom behavior] does little to dispel prejudice and instead only serves to emphasize an unruly defendant’s conduct”].)
PG X(E)(19)(3) Defendant Should Decide Whether Cautionary/Limiting Instruction Is Given: (See FORECITE PG VI(C)(1.1).)
PG X(E)(19)(4) Whether Cautionary Instruction Can Preclude Improper Juror Consideration of Hearsay Upon Which Expert Relied?
“Expert testimony may … be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [citations].) … [P] … And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter … upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [P] A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness … against the risk that the jury might improperly consider it as independent proof of the facts recited therein.'” (People v. Gardeley (1996) 14 C4th 605, 618-619.)
“Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [P] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]” (People v. Montiel (1993) 5 C4th 877, 919; see also People v. Bell (2007) 40 C4th 582, 608; People v. Coleman (1985) 38 C3d 69, 91.)
See also FORECITE PG X(E)(19)(1)-(3).
PG X(E)(20) Erroneous Instruction As To One Charge May Be Prejudicial As To Others: It is not unusual for an erroneous jury instruction on one criminal charge to have a prejudicial effect upon the jury’s determination of a second criminal charge which is closely related. People v. Atchison (78) 22 C3d 181, 183 [148 CR 881]; People v. Bernhardt (63) 222 CA2d 567, 593-94 [35 CR 401]; People v. Smittcamp (45) 70 CA2d 741, 745-46 [161 P2d 983].) In People v. Atchison (78) 22 C3d 181 [148 CR 881], the defendant was tried for both annoying or molesting a minor (PC 647a) and contributing to the delinquency of a minor (PC 272.) The trial court instructed, as to the contributing-to-delinquency offense, if the victim was actually under 18 years of age, it did not matter if the defendant believed the victim was over 18. The court held the instruction was erroneous under People v. Hernandez (64) 61 C2d 529 [39 CR 361], and reversed both convictions, “since the jury may have been misled as to [the instruction’s] application to both the Penal Code sections ….” (People v. Atchison (78) 22 C3d 181, 183 [148 CR 881]; see also People v. Bernhardt (63) 222 CA2d 567, 593-94 [35 CR 401] [The court found that an error in the trial court’s instructions on the intent required for criminal conspiracy carried over into the instructions on the other charge, which was manslaughter]; People v. Smittcamp (45) 70 CA2d 741, 745-46 [161 P2d 983] [erroneous jury instruction allowing consideration of evidence of uncharged sex acts to show adulterous disposition on Count II (statutory rape) was held to be prejudicial on Counts I and II (lewd and lascivious acts)]; People v. Cantrell (73) 8 C3d 672, 682 [105 CR 792] [Jury instructions are to be considered as a whole and the court was not required to repeat the entire definition each time it referred to the required specific intent].)
PG X(E)(21) Consideration Of Instructions Re: Prejudice From Jury Misconduct: (See In re Carpenter (95) 9 C4th 634, 653-55 [38 CR2d 665] [prejudice stemming from jury misconduct must be considered in light of the instructions the jury was given] [citing Romano v. Oklahoma (94) 512 US 1 [129 LEd2d 1; 114 SCt 2004].].) (See dissent in People v. Von Villas (95) 36 CA4th 1425, 1445-58 [43 CR2d 233] [criticizing confusing standards of review for jury misconduct].)
PG X(E)(22) Helpful Rules And Standards For Showing Prejudice: Special Verdicts. Inconsistency of special verdict with other verdicts returned by the jury. (See PG X(H).)
PG X(E)(23) Prejudicial Effect Of “Over-Instruction” When Defendant Convicted Of Lesser Offense. The fact that the defendant was only convicted of a lesser charge does not necessarily render improper instruction upon a greater charge harmless. It is widely recognized that prejudicial error can occur when the jury is improperly instructed upon a greater offense, even though the defendant was only convicted of a lesser charge. For example in Price v. Georgia (70) 398 US 323 [26 LEd2d 300; 90 SCt 1757], the Supreme Court reversed the defendant’s conviction for voluntary manslaughter because he had improperly been tried for first degree murder. The court reasoned: “Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. [Citation.]” This principle has been recognized and/or applied in a number of other cases. (People v. Doolittle (72) 23 CA3d 14, 22 [99 CR2d 810] [Price cited and potential for prejudice recognized]; Leonard v. People (62) 149 Colo. 360 [369 P2d 54, 59] [reversed where defendant was charged with first degree murder and convicted of voluntary manslaughter; court notes its long-standing recognition that “there is a real danger to a defendant in instructing upon higher degrees of homicide when the evidence will not support such instructions]; People v. Mayo (79) 48 NY2d 245, 250 [397 NE2d 1166, 1169] [recognized the “clear import” of Price and reversed]; Harrison v. State (77) 143 Ga. 833 [240 SE2d 263, 265-266] [reversed where district attorney and court improperly referred to charge of murder in a prosecution for voluntary manslaughter]; People v. Marshall (62) 366 Mich. 498 [115 NW2d 309] [reversed where defendant was charged with first degree murder and convicted of manslaughter; court recognizes that when twelve jurors agree, there is a “composition of views” which can be affected by improper greater charges]; People v. Hansen (62) 368 Mich. 344 [118 NW2d 422] [reversed where defendant charged with first degree murder and convicted of second degree; additional cases cited]; Pugliese v. Perrin (1st Cir. 1984) 731 F2d 85 [defendant charged with manslaughter and convicted of negligent homicide].)
PG X(E)(24) Failure Of Defendant To Testify: Whether Omission Of Instruction Can Be Harmless Error. U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, reversed for failure to caution the jury regarding the failure of the defendant to testify. (648 F2d at 631.) The court did not discuss whether the error could possibly be treated as harmless, noting that the government apparently conceded that the failure to give such an instruction is reversible error. (Ibid.) People v. Evans (98) 62 CA4th 186, 198 [72 CR2d 543] concluded that the error is subject to harmless error analysis. In so doing, the court noted that “if the principal contested issue is identity, the jury may very likely draw inferences adverse to the defendant from his failure to testify as to his whereabouts during the relevant time period.” (Evans, 62 CA4th at 198.)
PG X(E)(25) Credibility Contest Between Prosecution And Defense Witnesses Is Close Case. In a close case which turns on the credibility of witnesses, anything which tends to discredit the defense witnesses in the eyes of the jury or to bolster the story told by the prosecution witness, “requires close scrutiny when determining the prejudicial nature of any error.” (People v. Briggs (62) 58 C2d 385, 404 [24 CR 417]; see also United States v. Weatherspoon (9th Cir. 2005) 410 F3d 1142, 1151 [close case that boiled down to a battle over credibility]; People v. Lopez (2005) 129 CA4th 1508 [reversed due to evidentiary error when the case was a credibility contest between the prosecution’s witnesses and the defense witnesses]; U.S. v. Carroll (6th Cir. 1994) 26 F3d 1380, 1384 [curative instruction not sufficient where conflicting testimony was virtually the only evidence]; Green v. U.S. (D.C. Cir. 1994) 651 A2d 817, 819 [“classic close case” where decision rested virtually exclusively on the jury’s assessment of witness credibility]; U.S. v. Simtob (9th Cir. 1990) 901 F2d 799, 806 [improper vouching for a key witness’ credibility by the prosecutor in a close case]; U.S. v. Bess (6th Cir. 1979) 593 F2d 749, 753 [close case in which credibility was the key issue]; People v. Taylor (86) 180 CA3d 622, 626 [225 CR 733] [error requires reversal in “close case where credibility was the key issue”]; Van Buren v. State (MN 1996) 556 NW2d 548, 551; Cohn v. Meyers (NY 1986) 509 NYS2d 603, 607 [125 AD2d 524].) See also FORECITE PG X(F).
PG X(E)(25.1) Where Case Turns On Credibility of Single Prosecution Witness. Where a substantial portion of the prosecution’s case depends on the credibility of one prosecution witness, evidence which serves to discredit the testimony of that witness may raise a reasonable doubt in the minds of the jurors. (See Lewis v. Mayle (9th Cir. 2004) 391 F3d 989, 999.)
PG X(E)(26) Failure Of Jury To Ask Questions Does Not Cure Instruction Error:
PG X(E)(26.1) Consideration Of Juror Questions In Evaluating Prejudicial Impact Of Instructional Error. Juror questions may be considered by the reviewing court as indicative of the juror’s findings about the evidence and interpretation of the instructions. (See generally People v. Guiton (93) 4 C4th 1116, 1130 [in deciding whether instruction on erroneous theory was harmless reviewing court considers, inter alia, any communications from the jury]; People v. Dominguez (2006) 39 C4th 1141, 1160-61 [juror questions show that “one or more jurors may have been considering” the factual theory implied by the questions]; People v. Gavin (71) 21 CA3d 408, 418 [judge’s “failure to clear up the jury’s confusion regarding” factual issue expressed in juror “was fundamentally unfair to the defendant”].
PG X(E)(26.2) Failure To Ask Questions Does Not Demonstrate Juror Understanding Of The Instructions. See “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries And Real Trials In Wyoming,” Saxon, 33 Land & Water L. Rev. 59 (1998), p. 120 [study revealed that many jurors thought that they had understood the instructions better than they really had”].
PG X(E)(26.3) Juror’s Failure To Ask Questions Does Not Establish That The Instruction Was Correct. If an instruction is clear, but wrong, there may be no questions because the jury isn’t confused, just misled. That is, the jury may perfectly understand what the judge is telling them, but the instruction is telling them the wrong thing. As the court observed in Buzgheia v. Leasco Sierra Grove (97) 60 CA4th 374 [70 CR2d 427], in reversing a judgment because there was a reasonable probability an instructional error misled the jury, even though the jury never asked any questions or expressly stated on the record that it was misled: “There is no express indication that the erroneous instruction misled the jury in any way, such as a note from the jury seeking rereading of particular testimony or clarifying instructions. Nor would the jury necessarily evidence the basis of the confusion in such a way: After all, the jury may have understood perfectly well that [defendant] bore the burden of proof, in other words, the erroneous instruction was readily understandable”].
PG X(E)(27) Regardless Of The Applicable Harmless Error Test, There Are A Number Of Factors Which May Be Used To Show Prejudice In A Particular Case.
See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
PG X(E)(28) Post-Trial Events Cannot Cure Instruction Error.
It is fundamental that, in reviewing alleged trial errors related to the fact-finding process, the appellate court must limit its consideration to “the record evidence adduced at the trial . . . .” (Jackson v. Virginia (79) 443 US 307, 324; see also People v. Marks (2003) 31 C4th 197, 219, fn. 3 [appellate court’s determination of whether sufficient evidence supports a jury’s finding of competency “is limited to the evidence before the court at the time of the competency hearing. [Citation.]”]; People v. Johnwell (2004) 121 CA4th 1267, 1280 [same].)
Moreover, appellate courts must review “the correctness of the trial court’s ruling at the time it was made . . . and not by reference to evidence produced at a later date. [Citations.]” (People v. Welch (99) 20 C4th 701, 739; see also People v. Turner (84) 37 C3d 302, 312; People v. Greenberger (97) 58 CA4th 298, 336.)
Thus, appellate courts should not rely on “posttrial events to cure an instructional error. . . .” (People v. Johnwell, 121 CA4th at 1280.)