In People v. Powell (2018) 6 Cal. 5th 136; 169 the defendant contended that the cautionary instruction regarding the defendant’s out of court oral admissions (CJ 2.71.7) “pertains only to statements harmful to the defense.” The CSC apparently agreed that the instruction does not apply to exculpatory statements: “[T]his instruction properly applies to ‘any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant’s guilt’.” [Emphasis in original.] (Ibid. [citing and quoting People v. Diaz (2015) 60 Cal. 4th 1176, 1187 [“…cautionary instruction applies to any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant’s guilt…” and CC 358].)
CC 358 includes the following optional language for use – according to the Bench Notes — when “the jury heard both inculpatory and exculpatory statements by the defendant…” but should not be given if “the jury heard only exculpatory statements…” –
Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]
However, the defense may want to consider requesting modification of CC 358 when the defendant’s statements serve to show his guilt of a lesser offense than the charged offense. (See e.g., sample below.) Statements which mitigate or lessen the defendant’s culpability are exculpatory as to the greater offense but inculpatory as to the lesser offense. By failing to make this distinction the optional language of CC 358 improperly instructs the jurors to consider exculpatory evidence with caution.
Sample Instruction
Add to Paragraph 2 of CC 358:
Do not consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt of __________________________________ [insert applicable lesser included offense(es).
