Tag Archives: CC 100


Allocution: Judge Cannot Protect Defendant From Himself Should Allocution Be Permitted
October 17th, 2022

Although a defendant does not have the right to make a statement to the jury other than while testifying as a witness (or acting as defense counsel), if the trial court permits him to make a statement, it cannot censor what he says, even if it is harmful to defendant. (See People v. Anderson (2018) […]


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Improper Prosecutor Argument That Reasonable Doubt Requires “Some Evidence on Which to Base A Doubt”
September 23rd, 2021

In People v. Johnsen (2021) 10 Cal.5th 1116, 1166-67 the prosecutor misstated the law by telling the jurors that “[t]here has to be some evidence on which to base a doubt” because this definition of reasonable doubt “preclude[d] jurors from having reasonable doubt solely based on the insufficiency of the prosecution’s evidence.” The CSC held […]


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Deficiencies in Defense Evidence Cannot Make up for Shortcomings in Prosecution’s Evidence
August 13th, 2020

[Update of February 3rd, 2015 post] People v. Centeno (2014) 60 Cal. 4th 659 provides an important clarification of the presumption of innocence and the prosecution’s burden of proof: “…[D]eficiencies in the defense case [cannot] make up for shortcomings in [the prosecution’s case].” (Id., at 673.) For example, in People v. Brito (Sep. 19, 2019, […]


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Was the Maiden Voyage of the Titanic Merely “Incomplete”?
July 29th, 2016

In People v. Cortez (2016) 63 C4th 101 the prosecutor effectively told the jury that a non-imaginary belief is proof beyond a reasonable doubt: “The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the […]


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Improper to Instruct That an “Abiding Conviction” Means A Verdict “You Will Be Comfortable with … a Year from Now”
July 21st, 2016

In People v. Muniz [UNPUBLISHED] (2011) 198 CA4th 1324, at the beginning of voir dire, the judge instructed the jurors that in “plain English” an “abiding conviction” means “when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now.” The majority opinion […]


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Improper to Describe Proof Beyond a Reasonable Doubt in Terms of “Every Day” Decisions
July 20th, 2016

In People v. Nguyen (1995) 40 CA4th 28, 35-37, the prosecutor told the jury that people apply the reasonable doubt standard “every day” and it is the same standard people customarily use in deciding whether to change lanes when driving or whether to get married. The court of appeal held that this argument trivialized the […]


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Defense Has No Burden to Prove Any Specific Facts
July 13th, 2016

CC 100, paragraph 3, sentence 4, provides as follows: “Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty.” CC 100 is technically correct as far as it goes. (See People v. Ibarra (2007) 156 CA4th 1174, 1179.) However, it only discusses the presumption of innocence in the […]


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Use of Diagram or Visual Aid to Explain Proof Beyond a Reasonable Doubt
February 13th, 2015

In People v. Centeno (2014) 60 Cal. 4th 659, 662 the prosecutor used a diagram showing the boundaries of California and urged the jury to convict based on a “reasonable” view of the evidence. In addressing this issue the CSC discussed several related cases:   The case law is replete with innovative but ill-fated attempts […]


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Rape of Victim Who Is Both Intoxicated And Unconscious
April 10th, 2014

  People v. Smith (2011) 191 Cal. App. 4th 199.


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