Duty to Consider Elaboration of Standard Instructions
Pursuant to PC 1138, when the jurors “desire to be informed on any point of law arising in the case … the information required must be given ….” PC 1138 “imposes upon the court a duty to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
However, in the final analysis, “[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.]” (People v. Beardslee, supra, 53 C3d 68 at 97; see also People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251; ABA Standards, Std. 15.43(a).)
Therefore, the court “must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. the court “must at least consider how it can best aid the jury.” (People v. Beardslee, supra, 53 C3d 68 at 97; see also People v. Franklin (2018) 21 Cal.App.5th 881, 887.)
Readback Of Prior Instructions May Not Be Sufficient If the Jury Inquiry Indicates a Failure to Understand the Original instructions
It is not uncommon for judges to simply read back the original instructions in response to juror questions about the instructions, see e.g. People v. Gonzales (1999) 74 CA4th 382, 389-90:
“Unfortunately, the trial court’s failure in the present case to aid the jury during its deliberations providing adequate instructions in response to its inquiry is a failure we perceive is all too common. Rereading previously given standard CALJIC instructions in response to a jury’s question on the law when those instructions are inadequate rather than responding directly to the jury’s question out of fear of committing error is not a rarity.”
However, if the inquiry indicates that the jury did not understand the original instructions, simply reading those same instructions over again may not be sufficient to eliminate the jury’s confusion. (People v. Samuels (2005) 36 C4th 96, 140, Werdegar, J., concurring [“By simply rereading CALJIC No. 8.84—the same instruction already provided to the jury—the trial court failed to clarify the legal issue that concerned the jury….”]; People v. Gonzalez, supra, 74 CA4th at 389-90 [court erred in repeating non-responsive CALJIC instructions when jury asked specific questions concerning defense of accident]; People v. Thompkins (87) 195 CA3d 244, 253; Estate of Mann (86) 184 CA3d 593, 614; U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050, 1053; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838; U.S. v. Bolden (D.C. Cir. 1975) 514 F2d 1301, 1308-09; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158.)
McDowell v. Calderon reaffirmed the view that a simple readback of prior instructions may not be sufficient when the jury has indicated that it was confused by those instructions. The 9th Circuit invalidated the conviction because: “the trial judge did not identify the exact problem confounding the eleven jurors. He simply referred the jurors to the original instructions defining mitigating circumstances. The jurors had these instructions with them all along. Both sides agree the instructions were technically flawless. They were, however, the same instructions that for some unknown reason eleven of the jurors did not correctly understand in the first place. Under these circumstances, we agree with Justice Broussard of the California Supreme Court: ‘There is no point in reiterating language which has failed to enlighten the jury.’ [Citation.]” (McDowell v. Calderon, 130 F3d at 838.) “The unremarkable prescription for [juror] confusion is that ‘[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.’ [Citation to Bollenbach v. U.S. (1946) 326 US 607, 612-613 [90 LEd 350; 66 SCt 402]. As the 7th Circuit has said, Bollenbach places on the trial judge ‘a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.’ [Citation] This duty exists, among other reasons, because ‘in a trial by jury…, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.’ [Citation to Bollenbach, 326 US at 612].” [internal quotation marks deleted] (Davis v. Greer (7th Cir. 1982) 675 F2d 141, 145; but see Weeks v. Angelone (2000) 528 US 225 [145 LEd2d 727; 120 SCt 727] [no error to refer jurors to specific portion of correct instruction that addresses their question].)
