In People v. Sandoval (2015) 62 Cal.4th 394 the CSC reversed the lying in wait special circumstance because the trial judge failed to sua sponte instruct, per CJ 8.83 or CJ 8,83.1 that between two reasonable inferences from circumstantial evidence, the jury must choose the inference pointing to innocence: “We … conclude that the prosecution’s case for the lying-in-wait special circumstance substantially relied on that circumstantial evidence, and that CALJIC No. 8.83 or No. 8.83.1, or its equivalent, should have been given sua sponte.” (Id. at 421.)
In deciding whether this error required reversal the court concluded that it should be “judged as state law error that is prejudicial only where there is a reasonable probability of a more favorable result. [Citation omitted].” (Id. at 422.) However, the court emphasized that in this context “probability” does not mean “more likely than not … but merely a “reasonable chance….” [Citing and quoting People v Wilkins (2013) 56 C4th 333, 351; emphasis in Sandoval and Wilkins opinions.)
For additional discussion of the Watson standard and how to meet it see Forecite PG(X)(B)(9) [Article Bank # A-84 “A Primer On Prejudicial Error: The Applicable Tests And How To Satisfy Them,” by Dallas Sacher, Section VII.
In particular note the following passages from the above article:
“The Watson test applies to errors arising under the state Constitution as well as statutory law. (People v. Cahill (1993) 5 Cal.4th 478, 493.) However, the California Supreme Court has cautioned that some errors arising under the state Constitution remain reversible per se. (Ibid.) These errors include the denial of counsel, the denial of conflict free counsel, the denial of a jury trial and improper discrimination in the selection of the jury. (Ibid.) Moreover, even if Watson review is permitted for a state constitutional violation, a California court is still bound to apply the Chapman test if the same error also arises under the federal Constitution. (Id., at pp. 509-510.)”
“In applying the Watson test, it is important to note that an evenly balanced case is one which the defendant is entitled to win. (See cases cited in 6 Witkin and Epstein, California Criminal Law (2nd ed. 1989) section 3297, pp. 4077-4078.) Indeed, Watson makes this point crystal clear: “But the fact that there exists at least such an equal balance of reasonable probabilities necessarily means that the court is of the opinion `that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (Watson, supra, 46 Cal.2d at p. 837.)”
“As a corollary to the last point, it should be noted that some courts have employed a “divergence” from the Watson standard in a close case. (People v. Hickman (1981) 127 Cal.App.3d 365, 373.) Under this test, a close case mandates reversal whenever there is “`”`any substantial error tending to discredit the defense . . .’”‘” (Ibid.) Thus, in Hickman, reversal was ordered since the jury improperly learned of the defendant’s status as an ex-con. (Id., at pp. 373-374.)”
Note: It is not necessarily settled that the failure to instruct on a defense theory is only state law error. (See,
Chapman or Watson: What is the Standard of Prejudice For Misinstruction on Defense Theory?)
