Error and/or relief
The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.
First Holding:
A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo.
Authority:
People v. Simon (2016) 1 Cal.5th 98, 133
Second Holding:
The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one.
Authority:
People v. Hardy (2018) 5 Cal.5th 56, 98
Third Holding:
In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight.
Authority:
People v. Breverman (1998) 19 Cal.4th 142, 161 [disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260]
Fourth Holding:
Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.
Authority:
People v. Simon (2016) 1 Cal.5th 98, 133
Fifth Holding:
Doubts about whether an instruction is warranted should be resolved in favor of the accused.
Authority:
People v. Tufunga (1999) 21 Cal.4th 935, 944
Sixth Holding:
Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record.
Authority:
Reid v. Google (2010) 50 Cal.4th 512, 524, 532
Seventh Holding:
[Gary’s short description of an extensive discussion in the opinion:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s post-arrest exercise of his right to remain silent. Under Doyle, in essence, the prosecution may not comment on the defendant’s exercise of his right to remain silent. Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel.
Authority:
Griffin v. California (1965) 380 U.S. 609
Doyle v. Ohio (1976) 426 U.S. 610
People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings]
People v. Fabert (1982) 127 Cal.App.3d 604, 609
People v. Bryant Smith and Wheeler (2014) 60 Cal.4th 335, 387
Eighth Holding:
The prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. Griffin/Doyle error requires reversal unless the court can conclude it was harmless beyond a reasonable doubt. The appellate court must determine, absent the prosecutor’s reference to defendant’s failure to testify, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.
Authority:
Griffin v. California (1965) 380 U.S. 609
People v. Hardy (1992) 2 Cal.4th 86, 153–154
United States v. Hasting (1983) 461 U.S. 499, 507–509
Ninth Holding:
Indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. But the error is prejudicial if the evidence against defendant is less than overwhelming and the improper comment touched a live nerve in the appellant’s defense. It is prejudicial if it served to fill an evidentiary gap in the prosecution’s case. The appellate court must determine whether the comment actually or implicitly invited the jury to infer guilt from silence.
Authority:
People v. Hovey (1988) 44 Cal.3d 543, 572
People v. Galloway (1979) 100 Cal.App.3d 551, 560
People v. Medina (1974) 41 Cal.App.3d 438, 463
People v. Hardy (1992) 2 Cal.4th 86, 159
Tenth Holding:
The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction.
Authority:
People v. Galloway (1979) 100 Cal.App.3d 551, 560
Eleventh Holding:
Griffin prohibits the prosecution from so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.
Authority:
Griffin v. California (1965) 380 U.S. 609
People v. Guzman (2000) 80 Cal.App.4th 1282, 1287
People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present]
