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F 2.005a
Cautionary Instruction: Dismissed Defendant
The case has been disposed of as to the defendant[s] __________ [name defendants dismissed]. [He] [She] [They] [are] [is] no longer of concern to you, and you should not speculate as to the reason for this disposition. This disposition should not control or influence your verdict with reference to the remaining defendant[s] and you must base your verdict as to [him] [her] [them] solely on the evidence against [him] [her] [them].
OR
Jury Not To Consider Guilty Plea Of Accomplice
The fact that an accomplice has entered a plea of guilty cannot be considered by you as evidence of the guilt of any other person.
Points and Authorities
When the case has been dismissed against one of the defendants during trial, there is a danger that the jury will speculate as to why this action has been taken. (People v. Young (78) 85 CA3d 594, 602 [149 CR 524].) Specifically, the jury might speculate that the co-defendant has pled guilty. This instruction, which is a standard federal instruction (Devitt, et al., Fed. Jury Prac. & Inst. (1992), § 11.10; see also Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. #17, p. 24) has been held to satisfactorily address this concern. (See U.S. v. Gibbons (2nd Cir. 1979) 602 F2d 1044, 1048; see also Young 85 CA3d at 602.)
NOTES
The second instruction above was given as requested in People v. White, No. 117535, San Francisco Superior Court.
