Category Archives: Jury instructions

Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

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

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000771

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it failed to instruct the jury regarding specific intent for count 2, and the trial court abused its discretion when it imposed the registration requirement, We reverse count 2 and strike the registration requirement, and in all other respects affirm.

First Holding:

Trial courts have a sua sponte duty to instruct on every element of charged offenses. Instructions completely removing the issue of intent from the jury’s consideration may constitute a denial of federal due process principles. We review independently the legal adequacy of a jury instruction.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Lee (1987) 43 Cal.3d 666, 673,

People v. Cole (2004) 33 Cal.4th 1158, 1211

Second Holding:

The court instructed the jury that count 2 required “general criminal intent,” which is established when the defendant intentionally does a prohibited act.

This instruction was erroneous. The crime in count 2 is a specific intent crime because it requires the act to be done with the intent to accomplish a separate objective.

In addition, the instruction given on the crime was incomplete, because it included the statutory language for the prohibited conduct, but it omitted the requirement that the physical act be performed for a separate reason.

Specific intent is not presumed from the doing of the unlawful act.

Authority:

EVID 668

People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167 [construing equivalent language of a similar section]

Third Holding:

We assess the prejudicial effect of the failure to instruct regarding the required element of mental state pursuant to Chapman. We must reverse unless it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.

Instructional error is harmless where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, but not where the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

In our view, the instructional error is not harmless because the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

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

People v. Mil (2012) 53 Cal.4th 400, 409

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

Substantial evidence did not support the trial court’s order that the defendant register as a sex offender. Section 290.006 requires a defendant to register as a sex offender if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Section 290.006 does not include sexual abuse as a basis for registration.

Authority:

PEN 290.006

Fifth Holding:

We review imposition of a registration requirement pursuant to section 290.006 for abuse of discretion. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

A trial court abuses its discretion when its factual findings are not supported by the evidence. Here, there was no evidence that the murder (count 1) was committed for sexual gratification. The registration requirement must be stricken.

If the defendant is retried on the reversed count by a properly instructed jury, the court may reconsider the registration requirement based on the evidence presented at that trial.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Because sufficient evidence was presented that could support a guilty verdict if the jury were properly instructed, the People may retry the defendant for count 2 on remand.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272

Elements of crime, Jury instructions

Case 000704

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to instruct that the jury could find the maul to be a deadly under either of two theories–(a) that it was inherently deadly or dangerous or (b) that it was used in such a way that it was capable of causing and likely to cause death or great bodily injury.

First Holding:

Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such.

Authority:

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

Second Holding:

Add holding The trial court instructed the jury, pursuant to CALCRIM No. 3145, that if the jury found the defendant guilty of count three—vandalism—it must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon.

The instruction defined a deadly or dangerous weapon as any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. It went on to explain that an object is inherently deadly if it is deadly or dangerous in the ordinary use for which it was designed.

The court further instructed the jury to consider all the surrounding circumstances in determining whether the object constituted a deadly or dangerous weapon.
here

Authority:

CALCRIM no. 3145

Third Holding:

For assault with a deadly weapon our high court has defined a weapon that is not inherently deadly as deadly nonetheless, when it is used in a manner likely to produce death or great bodily injury. CALCRIM No. 3145 has, in turn, adopted the same definition in defining a deadly or dangerous weapon under section 12022.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1029

People v. Stutelberg (2018) 29 Cal.App.5th 314, 317

Fourth Holding:

Whether a weapon is deadly or dangerous as used focuses on potentiality and not on an actual injury to a victim, or even physical contact. Although a mere possibility of serious injury is not enough, the question is whether serious injury was likely, even if it did not come to pass. This necessarily calls for an assessment of potential harm in light of the evidence.

Authority:

In re D.T. (2015) 237 Cal.App.4th 693, 698

In re B.M. (2018) 6 Cal.5th 528, 535

Fifth Holding:

The court committed alternative theory error by presenting the jury with two theories by which it could find the maul a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7

Sixth Holding:

The error was factual and is subject to review under Watson. Under the Watson standard, reversal is required if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. A “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

In making this evaluation, we may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715

People v. Breverman (1998) 19 Cal.4th 142, 177, disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237

Seventh Holding:

The prosecutor repeatedly argued during closing that a maul was an inherently dangerous weapon. Indeed, during rebuttal, the prosecutor emphasized that the maul was an inherently dangerous weapon, like a firearm, and that in just its simple design, it is deadly and dangerous.

Given the relative weakness of the evidence that the defendant used the maul in a manner likely to cause death or great bodily injury and the prosecutor’s emphasis on the inherently deadly nature of the maul, there is a reasonable chance that at least one juror could have found the enhancement true under an inherently deadly theory. We therefore reverse the deadly or dangerous weapon enhancement.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1226–1227 [prejudice found where the prosecutor argued a legally invalid theory during closing arguments]

(Compare with) People v. Stutelberg (2018) 29 Cal.App.5th 314, 322 [finding no prejudice because the prosecutor did not expressly refer to the inherently deadly weapon theory and did not invite the jury to classify the box cutter as inherently deadly]

Defenses, Duty of the court, Elements of crime, Fifth Amendment, Jury instructions, Standard of review

Case 000691

Posted on by Gary McCurdy

Error and/or relief

The trial court gave an erroneous instruction on involuntary manslaughter requiring reversal. Based on the findings of the jury that the defendant was not guilty under any valid theory, we do not order retrial on the involuntary manslaughter.

First Holding:

(Gary note: I provide the following as context for the results in this opinion. These summaries are intended and designed to highlight principles of law, not so much the specific factual situation in which the error occurred. In this jury instruction error case, though, a little more factual specificity may aid the reader in understanding the more universal principles.

(In this case, the judge modified the standard instruction on involuntary manslaughter in such a way that the jury first had to find that the defendant acted in complete self-defense, and then had to determine whether he did so in a negligent matter. But that is not the law. Complete self-defense ends the question. Had the defendant acted in any way that was NOT complete self-defense, then he would not have been acting lawfully. And the jury necessarily found that he acted in complete self-defense, so it was misled by the instruction that allowed the jury to find him guilty of involuntary manslaughter.

(The opinion summarizes the context: “Here, the jury found defendant not guilty of first degree and second degree murder based on the finding that defendant acted in lawful self-defense in shooting defendant. It further found defendant not guilty of voluntary manslaughter rejecting that unreasonable self-defense was applicable. It found defendant guilty of involuntary manslaughter, finding, as recognized by the trial court, that defendant, ‘in a lawful act of self-defense, was criminally negligent in how he did it, and in his criminally negligent manner resulting in an involuntary manslaughter.’ As we have concluded, such determination was not a valid theory of involuntary manslaughter. There was no other theory of involuntary manslaughter presented to the jury. Here, the only question for the jury was whether defendant acted in reasonable self-defense in shooting [the victim] one time in the face. Once it concluded that such use of force was reasonable, it found lawful self-defense, which was a complete defense to involuntary manslaughter. The jury necessarily relied on the erroneous instruction to convict defendant of involuntary manslaughter after finding the complete defense of justifiable homicide. The error was prejudicial.”)

It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. It is also well settled that this duty to instruct extends to defenses if it appears … the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 73

Second Holding:

In reviewing a claim that the court’s instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.

Authority:

People v. Butler (2010) 187 Cal.App.4th 998, 1013

Third Holding:

Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice. A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in unreasonable self-defense—the unreasonable but good faith belief in having to act in self-defense.

Authority:

PEN 192

People v. Elmore (2014) 59 Cal.4th 121, 132

People v. Blakeley (2000) 23 Cal.4th 82, 87-88

Fourth Holding:

A defendant commits involuntary manslaughter by committing a homicide with the mens rea of criminal negligence. The offense must be based on one of three predicate acts: (1) killing in the commission of a misdemeanor ; (2) killing in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or (3) killing in the commission of a noninherently dangerous felony committed without due caution and circumspection.

The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony.

Authority:

People v. Sevilla (2025) 115 Cal.App.5th 618, 626

Fifth Holding:

A killing in perfect self-defense is justifiable homicide. Perfect self-defense requires that one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. Imperfect self-defense reduces an intentional and unlawful killing to voluntary manslaughter. Imperfect self-defense occurs when defendants act in the actual but unreasonable belief they are in imminent danger of great bodily injury or death.

Authority:

People v. Odell (2023) 92 Cal.App.5th 307, 321

People v. Lewis (2001) 25 Cal.4th 610, 645

Sixth Holding:

In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1172

Appellate Principles, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000624

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury regarding unlawful detention or unlawful arrest. The judgment is reversed. Because there was sufficient evidence that a properly instructed jury could have returned the same verdict, double jeopardy principles do not apply and the matter may be retried.

First Holding:

All criminal defendants have the right to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Thus, the trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.

A claim of instructional error is reviewed de novo. An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.

Similarly, if the trial court decides to provide supplemental instruction to the jury during deliberation, we review de novo the legal accuracy of any supplemental instructions provided.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Parker (2025) 113 Cal.App.5th 1261, 1271

Second Holding:

Section 69 provides that every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law is punishable by a fine or by imprisonment. Similarly, section 148(a)(1) prohibits resisting an officer in the performance of duty, though the resistance need not be forceful or violent.

Authority:

PEN 69

PEN 148

People v. Hupp (2023) 96 Cal.App.5th 946, 950

In re A.L. (2019) 38 Cal.App.5th 15, 22

Third Holding:

The lawfulness of an officer’s conduct is an essential element of both offenses because there is no distinction between performing a duty and lawfully performing a duty, since an officer who is acting unlawfully cannot be said to be performing his or her duty. And the prosecution has the burden of proving the lawfulness of the officers’ conduct beyond a reasonable doubt. Thus, the lawfulness of the officers’ conduct is an essential element upon which the trial court had a sua sponte duty to properly instruct the jury.

Authority:

In re A.L. (2019) 38 Cal.App.5th 15, 25

People v. Southard (2021) 62 Cal.App.5th 424, 435

Fourth Holding:

To convict defendant of a violation of section 69 or 148, the prosecution was required to prove, and the jury was required to find, that officers were engaged in the lawful performance of their duties. The pattern jury instructions include definitions for various scenarios in which an officer can be considered engaged in a lawful performance of duty, including during a detention, an arrest without a warrant, and an arrest for a misdemeanor offense. (CALCRIM 2670.)

However, the trial court did not give any of these definitions to the jury. Nor did the trial court offer its own definition for the jury to consider. In essence, the trial court instructed the jury that it was required to find that the officers were engaged in a lawful performance of duty but provided no definitions or guidance to the jury regarding how to make this finding. This was clearly error.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 913 [Where a term or phrase has a special definition for purposes of a statute, the failure to define it for the jury is error.]

People v. Reyes (1992) 2 Cal.App.4th 1598, 1601 [Failure to define terms essential to an element of an offense is “equivalent to the omission of an element from the definition of the crime given to the jury.]

Fifth Holding:

The question of reasonable or probable cause is ordinarily one for the court and, where there are disputed facts to be resolved by a jury, the jury is to be told that if it finds the facts in a designated way such facts do or do not amount to probable cause.

Authority:

Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 629-630

Sixth Holding:

Whether an offense has been committed in an officer’s presence is determined by whether the officer could testify to actual knowledge to every element of the offense.

Authority:

People v. Garrison (1961) 189 Cal.App.2d 549, 557

In re Alonzo C. (1978) 87 Cal.App.3d 707, 714

People v. Welsch (1984) 151 Cal.App.3d 1038, 1044

Seventh Holding:

When the jury is misinstructed on an element of the offense reversal is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. In such cases, a reviewing court must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. Here, we cannot say with any confidence that the jury would have reached the same verdict had it been properly instructed in this case.

Authority:

People v. Wilkins (2013) 56 Cal.4th 333, 348

People v. Merritt (2017) 2 Cal.5th 819, 831

Eighth Holding:

It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. However, a settled exception to this rule permitting retrial after a successful appeal occurs when a conviction has been reversed due to insufficiency of the evidence.

Thus, even where reversal is required based on instructional error, an appellant’s arguments regarding insufficiency of the evidence should be considered to determine whether retrial is barred by double jeopardy principles. The inquiry at this stage is to determine whether, if properly instructed, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852-853

People v. Wetle (2019) 43 Cal.App.5th 375, 388

People v. Hallock (1989) 208 Cal.App.3d 595, 608-609;

In re Martinez (2017) 3 Cal.5th 1216, 1224 [Where instructional error occurs, retrial is barred if defendant can show there was insufficient evidence to support a conviction even when the law is properly construed.]

Ninth Holding:

While an offense may be considered a “wobbler” punishable as either a misdemeanor or felony, its status as a wobbler has no bearing on the lawfulness of a warrantless arrest. This is because the commission of a wobbler is a felony at the time it is committed and remains deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court.

Authority:

People v. Moomey (2011) 194 Cal.App.4th 850, 857-858

People v. Statum (2002) 28 Cal.4th 682, 685