Category Archives: Jury instructions

Elements of crime, Jury instructions

Case: 000160

Posted on by Gary McCurdy

Error and/or relief

The deadly weapon enhancement attached to the attempted carjacking in count two must be reversed due to instructional error.

First Holding:

The trial court committed error (known as alternative theory error) by presenting the jury with two theories by which it could find a knife to be a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct. Because a knife can be, and usually is, used for innocent purpose, it is not among the few objects that are inherently deadly weapons

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 6

Second Holding:

When alternative theory error occurs, the reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 13

Chapman v. California (1967) 386 U.S. 18

Duty of the court, Elements of crime, Jury instructions, Standard of review

Case: 000144

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

First Holding:

The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 29, 33, fn. 6

Second Holding:

We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 30

Third Holding:

It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only.

Authority:

PEN 243.4(e)(1)

PEN 242

People v. Shockley (2013) 58 Cal.4th 400, 404

People v. Yonko (1987) 196 Cal.App.3d 1005, 1010

Fourth Holding:

Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him.

Authority:

People v. Watson (1956) 46 Cal.2d 818

People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201

People v. Schuller (2023) 15 Cal.5th 237, 260

Fifth Holding:

The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 681

Elements of crime, Jury instructions, Standard of review, Vicarious liability

Case: 000131

Posted on by Gary McCurdy

Error and/or relief

[GARY NOTE: No relief was granted, because the errors were all found to be harmless in light of the rest of the evidence. The gold here rests in the relative clarity in which the principles of implied malice were set out by the court.] The trial court instructed the jury incorrectly on implied malice and aiding and abetting implied malice murder. However, we find the error harmless beyond reasonable doubt. If anything, the defect in CALCRIM No. 401 only made it harder for the jury to find defendant guilty. It would have been easier for the jury to find that defendant knew that the co-defendants intended to commit a life-endangering act than to find defendant knew they intended to commit murder, a life-ending act.

First Holding:

Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. Implied malice contains an objective or physical component and a subjective or mental component.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Nieto Benitez (1992) 4 Cal.4th 91, 106

Second Holding:

To be liable for an implied malice murder, a direct aider and abettor must aid the perpetrator in committing a life endangering act that proximately causes death.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

People v. Powell (2021) 63 Cal.App.5th 689, 712-713

Third Holding:

Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review.

Authority:

People v. Hillhouse (2002) 27 Cal.4th 469, 503

Fourth Holding:

Defendant’s jury was incorrectly instructed under CALCRIM No. 401 to determine whether defendant aided and abetted the perpetrators’ commission of a crime, not an act. Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

People v. Powell (2021) 63 Cal.App.5th 689,

People v. McCoy (2001) 25 Cal.4th 1111, 1122

Fifth Holding:

The instruction given was thus an erroneous aiding and abetting instruction for purposes of this case. We review the error under the Chapman harmless error standard.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714-715

Chapman v. California (1967) 386 U.S. 18, 24

Defenses, Duty of the court, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case: 000109

Posted on by Gary McCurdy

Error and/or relief

The defendant was charged with first degree murder under two theories–deliberation and premeditation, and lying in wait. The jury was not required to agree unanimously on the theory. He was convicted of first degree murder, along with a count of attempted murder with premeditation and deliberation. We conclude that insufficient evidence supports the finding of lying in wait. One of the elements of lying in wait, namely, “a substantial period of watching and waiting for an opportune time to act,” is not supported by substantial evidence. That conclusion requires us to reverse the finding on the lying-in-wait special circumstance, but it does not require a reversal of the first degree murder convictions, as they are supported by the alternative theory of premeditation and deliberation.

First Holding:

The lying-in-wait special circumstance requires an intentional murder, committed under circumstances that include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) a surprise attack on an unsuspecting victim from a position of advantage It includes the elements of first degree lying-in-wait murder but requires the additional element that the killing was intentional, not merely committed with implied malice.

Authority:

PEN 190.2(a)(15)

People v. Flinner (2020) 10 Cal.5th 686, 74

Second Holding:

To support a finding of concealment of purpose, it is not required that a defendant be literally concealed from view before he attacks the victim. Rather, it is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. The concealment, in that sense, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. Concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise.

The lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack. To distinguish the circumstance from ordinary premeditation and deliberation, a distinct period of watchful waiting is required. “Watchful” does not require actual watching; it can include being alert and vigilant in anticipation of the victim’s arrival to take him or her by surprise.

Authority:

People v. Barrett (2025) 17 Cal.5th 897, 966–967

People v. Duong (2020) 10 Cal.5th 36, 67

People v. Stevens (2007) 41 Cal.4th 182, 204

People v. Clark (2016) 63 Cal.4th 522, 629

People v. Nelson (2016) 1 Cal.5th 513, 551

People v. Streeter (2012) 54 Cal.4th 205, 247

Third Holding:

In assessing a challenge to the sufficiency of the evidence, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. “Substantial evidence” includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

Fourth Holding:

A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. The appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. In making that determination, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.

The defendant does not challenge the sufficiency of the evidence to support a finding of premeditation and deliberation. Thus, our inquiry is whether there is a reasonable probability that the jury returned a verdict of first degree murder based solely on lying in wait, rather than also on premeditation and deliberation. The jury’s express findings in connection with the attempted murder in count 2 preclude any reasonable probability the jury relied solely on lying in wait as the theory for first degree murder.

Authority:

People v. Nelson (2016) 1 Cal.5th 513, 552 [affirming first degree murder based on sufficient evidence of premeditation and deliberation despite insufficient evidence to support lying in wait]

People v. Guiton (1993) 4 Cal.4th 1116, 1130

Fifth Holding:

The court committed harmless error under Chapman in declining the defendant’s request to instruct the jury on the theory of imperfect self-defense. Under the doctrine of imperfect self-defense. if a person kills in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter, not murder.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 561

People v. Rios (2000) 23 Cal.4th 450, 461

People v. Schuller (2023) 15 Cal.5th 237, 243

Chapman v. California (1967) 386 U.S. 18, 24

Sixth Holding:

The trial court was required to instruct on imperfect self-defense if there was substantial evidence to support the theory. “Substantial evidence” is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense of voluntary manslaughter was committed, but does not include evidence that is speculative, minimal, or insubstantial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 253

People v. Simon (2016) 1 Cal.5th 98, 132

Seventh Holding:

We review de novo a trial court’s decision not to give an imperfect self-defense instruction. When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard. Under the Chapman standard, reversal is required unless it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Though there was insufficient evidence of the watchful waiting to support a finding of lying in wait, the jury returned a finding that the murder was committed by lying in wait.

There was sufficient evidence of the aspects of lying in wait other than watchful waiting. Because of its true finding on lying in wait, the jury could not have found an imperfect self-defense in which the defendant used deadly force against the victim because he unreasonably believed that doing so was necessary to defend himself.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

People v. Schuller (2023) 15 Cal.5th 237, 243

Chapman v. California (1967) 386 U.S. 18

People v. Cruz (2008) 44 Cal.4th 636, 665 [a jury’s true finding on a lying-in-wait special circumstance negated any possibility that defendant was prejudiced from the failure to instruct on unreasonable self-defense theories of manslaughter]

Elements of crime, Jury instructions

Case 000039

Posted on by Gary McCurdy

Error and/or relief

[Gary note: not a win, really, but it contains useful language. The trial court committed instructional error, but it was found to be harmless.] Although harmless error, the trial court erred in instructing the jury on the legally invalid theory that a pocketknife could be an inherently deadly weapon.

First Holding:

The evidence did not support instructing the jury on inherently deadly weapons because a knife is not inherently deadly as a matter of law. Only a few items that are designed to be used as deadly weapons are inherently deadly. The court should not have given the instruction because, as with most weapons, the knife was not, as a matter of law, inherently deadly and inclusion of an instruction on inherently deadly weapons was unnecessary.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1

Second Holding:

Though the court erred when it instructed the jury that it could find the pocketknife an inherently dangerous weapon, this factual error was harmless because the record does not affirmatively demonstrate a reasonable probability that the jury found the defendant guilty solely on the unsupported theory.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 329

Duty of the court, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000037

Posted on by Gary McCurdy

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]

Duty of the court, Jury instructions

Case 000026

Posted on by Gary McCurdy

Error and/or relief

Because of error in instructing the jury with CALCRIM 361, we reverse the convictions and remand for further proceedings. The trial court erred by instructing the jurors with CALCRIM No. 361 because the defendant’s testimony did not represent a complete failure to explain or deny incriminating evidence, nor did he claim a lack of knowledge about something incriminating that he could reasonably be expected to have known.

First Holding:

It is error to instruct on failure to explain or deny where defendant did not fail to explain or deny.

Authority:

People v. Cortez (2016) 63 Cal.4th 101

Second Holding:

We review a claim of instructional error de novo.

Authority:

People v. Parker (2022) 13 Cal.5th 1, 66

People v. Cole (2004) 33 Cal.4th 1158, 1217

Third Holding:

That there was a prior hung jury may be persuasive on the question of the prejudice from the error.

Authority:

People v. Soojian (2010) 190 Cal.App.4th 491, 520