Category Archives: Jury instructions

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

Case 000611

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to instruct the jury about how a defendant who is an initial aggressor can regain the right to self-defense.

First Holding:

The defendant’s defense was self-defense, and the trial court accordingly instructed the jury on perfect and imperfect self-defense under CALCRIM No. 505. Over his objection, the trial court also instructed the jury with CALCRIM No. 3471 regarding an initial aggressor’s right to self-defense. However, the trial court omitted language from CALCRIM No. 3471 about how an initial aggressor can regain the right to self-defense. Omission of that language was prejudicial error. Whether a trial court properly instructed a jury is a question of law that we review de novo.

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1210

Second Holding:

A trial court in a criminal case must instruct on the general principles of law that are closely and openly connected to the facts before the court and are necessary for the jury’s understanding of the case. This includes a sua sponte duty to instruct the jury on an affirmative defense if it appears the defendant is relying on such a defense or if substantial evidence supports it and it is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Hovarter (2008) 44 Cal.4th 983, 1021

People v. Boyer (2006) 38 Cal.4th 412, 469

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Third Holding:

It is error to give an instruction that is not supported by substantial evidence. Substantial evidence is evidence of reasonable, credible value sufficient to deserve consideration by the jury. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.

Authority:

People v. Marshall (1997) 15 Cal.4th 1, 39–40

People v. Guiton (1993) 4 Cal.4th 1116, 1129

People v. Wilson (2005) 36 Cal.4th 309, 331

People v. Crew (2003) 31 Cal.4th 822, 835

People v. Salas (2006) 37 Cal.4th 967, 982

Fourth Holding:

As an initial matter, the Attorney General contends the defendant forfeited his contention that it was error to omit the language on how an initial aggressor can regain his right to self defense, because he failed to ask the trial court to include the omitted language. Assuming forfeiture applies, we nonetheless may decline to apply it if the instructional error affected the defendant’s substantial rights. Because the contention affects the defendant’s substantial rights, we consider it.

Authority:

PEN 1259

People v. Jennings (2010) 50 Cal.4th 616, 671 [party may not complain on appeal that instruction correct in law and responsive to evidence was too general or incomplete in absence of request for clarifying language]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Fifth Holding:

When a defendant engages in simple assault or trespass and his opponent responds with deadly force so suddenly that the person cannot withdraw, a defendant may immediately use deadly force in self-defense. The qualification in the language omitted from the jury instruction thus applies where the defendant commits a simple assault. But if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray.

Authority:

People v. Quach (2004) 116 Cal.App.4th 294, 301

People v. Conkling (1896) 111 Cal. 616, 626–627

People v. Hecker (1895) 109 Cal. 451, 464 [Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

People v. Gleghorn (1987) 193 Cal.App.3d 196, 201

People v. Salazar (2016) 63 Cal.4th 214, 249-250 [exception did not apply where defendant approached victim with cocked gun]

Sixth Holding:

We apply the harmless-beyond-a-reasonable-doubt standard in Chapman to determine whether the error merits reversal. The Chapman standard requires us to determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. We must reverse the conviction under that standard unless we conclude that no rational juror who made the findings reflected in the verdict and heard the evidence at trial court could have had a reasonable doubt regarding the findings necessary to convict the defendant, absent the instructional error.

Authority:

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

People v. Quach (2004) 116 Cal.App.4th 294, 303

People v. Ramirez (2015) 233 Cal.App.4th 940, 953

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

People v. Schuller (2023) 15 Cal.5th 237, 244

Seventh Holding:

Simple assault requires an act that by its nature would directly and probably result in the application of physical force to another person, and the crime does not require actual physical injury or contact to the victim.

Authority:

People v. Harring (2021) 69 Cal.App.5th 483, 503

Eighth Holding:

An instruction is inconsistent with defendant’s theory of case if it requires acknowledging, if only inferentially, existence of facts which defendant otherwise denied. The language omitted from the instruction was not inconsistent with the defendant’s defense.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1168–1169

People v. Salas (2006) 37 Cal.4th 967, 982–983 [trial court has no duty to instruct on affirmative defense inconsistent with defendant’s theory of case]

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

Case 000595

Posted on by Gary McCurdy

Error and/or relief

Defendant was convicted of multiple counts of a sexual nature against children. There was insufficient evidence to support one of the counts. Six other counts are reversed because of a prejudicial error on their verdict forms for those counts (listing the descriptions of the crimes but incorrectly identifying the section number, thus possibly confusing the jury because there was another count that correctly bore that section number and the jury was instructed on its elements, which it may have incorrectly relied on for its verdicts in the erroneous verdict forms).

First Holding:

A conviction must be supported by substantial evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Medina (2009) 46 Cal.4th 913, 919

Second Holding:

We review the trial court’s denial of the new trial motion for abuse of discretion. The California Constitution provides that no judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The effect of this provision is to eliminate any presumption of injury from error and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant.

Authority:

Cal. Const., art. VI, sec. 13

People v. Delgado (1993) 5 Cal.4th 312, 328

People v. Jacobs (1991) 230 Cal.App.3d 1337, 1346

Third Holding:

Under the applicable prejudice standard, an erroneous verdict form is harmless if it is unmistakably clear under the totality of the circumstances that the jury intended to convict the defendant of the crime charged.

Authority:

People v. Camacho (2009) 171 Cal.App.4th 1269, 1272

Fourth Holding:

A prosecutor’s statement of facts not in evidence constitutes misconduct.

Authority:

People v. Bolton (1979) 23 Cal.3d 208, 212

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

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

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

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

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

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

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

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

Case 000588

Posted on by Gary McCurdy

Error and/or relief

The court erred by instructing the jury that a knife was a deadly weapon as a matter of law.

First Holding:

Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons. While a knife is not an inherently dangerous or deadly instrument as a matter of law, it may assume such characteristics, depending upon the manner in which it was used. A trial court therefore errs by instructing a jury with two theories by which it could find [a knife] 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, 6, 7

Second Holding:

The Supreme Court has considered the consequences when a court instructs on two theories of guilt, one correct and the other incorrect. A theory is factually inadequate if the theory is incorrect only because the evidence does not support it. If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. Thus, a reviewing 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.

Authority:

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

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

Third Holding:

In contrast, a theory is legally inadequate if it is incorrect because it is contrary to law. Because the jury is not equipped to detect such an error, a higher standard must be met for the error to be found harmless. Consequently, if a jury is instructed on a legally inadequate theory, then the error is reversible unless it is harmless beyond a reasonable doubt.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7, 13

Fourth Holding:

The court erred by giving instructions that permitted the jury to find that a knife is an inherently deadly or dangerous weapon. The theory was factually inadequate, because the instructions defined inherently deadly and thus equipped the jury to detect the error. We conclude, however, that the error was prejudicial. During closing argument, the prosecutor contended that a knife is an inherently dangerous weapon.

In addition, the verdict form did not ask the jury to find whether the defendant used a deadly or dangerous weapon. It did not refer to the enhancement allegation or even identify the applicable code section, which might have allowed the jury to correlate the verdict form with the relevant written instruction. Instead, the verdict form asked the jury to determine whether the defendant used a knife, without any requirement that the knife be found deadly or dangerous on any theory. The entire verdict must be considered in determining whether alternative theory error was prejudicial.

Authority:

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

Fifth Holding:

We review a true finding on a deadly weapon enhancement allegation for sufficiency of the evidence. The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. We determine that there was sufficient evidence to support the enhancement, and thus it may be retried.

Authority:

People v. Alvarez (1996) 14 Cal.4th 155, 224-225

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

Case 000583

Posted on by Gary McCurdy

Error and/or relief

Though the trial court erred in failing to instruct that mere presence at the scene is insufficient to prove guilt, the error was harmless in light of the other evidence presented. The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. It must be corrected.

First Holding:

The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. it must be corrected.

(GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

We review questions of instructional error de novo. In so doing, we consider the jury instructions as a whole, as well as the charges and entire record.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Serrano (2022) 77 Cal.App.5th 902, 909

Third Holding:

In determining a sufficiency of the evidence challenge, we review the whole record in the light most favorable to the judgment 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 focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence.Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

In other words, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is the same in cases in which the People rely primarily on circumstantial evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Bean (1988) 46 Cal.3d 919, 932

Fourth Holding:

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. Whether a person has aided and abetted a crime is a question of fact for which the trier of fact may consider presence at the scene of the crime, companionship, and conduct before and after the offense. The requisite state of mind may be proven with circumstantial evidence.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055

Fifth Holding:

Although defendant’s mere presence at the scene cannot alone establish aiding and abetting, her presence may be considered along with other evidence to establish that she aided and abetted the burglary. Further, possession of recently stolen property cannot alone establish burglary, but such possession is highly incriminating and need only be slightly corroborated.

Authority:

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Mendoza (2000) 24 Cal.4th 130, 176

People v. McFarland (1962) 58 Cal.2d 748, 754-755

Sixth Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. The trial court has a sua sponte duty to give the mere presence portion of the aiding and abetting instructions where there is substantial evidence supporting its consideration.

Authority:

People v. Ochoa (1998) 19 Cal.4th 353, 422

People v. Boyd (1990) 222 Cal.App.3d 541, 557

Seventh Holding:

We conclude that the defendant’s testimony was sufficient to trigger the trial court’s sua sponte duty to give the mere presence portion of the aiding and abetting instruction. However, whether prejudice is to be measured under the Watson standard or the more rigorous Chapman standard, we find beyond a reasonable doubt that the failure to instruct was harmless, in light of our review of the entire record, including the arguments of the parties.

Authority:

People v. Boyd (1990) 222 Cal.App.3d 541, 557

People v. Perry (1979) 100 Cal.App.3d 251, 260

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

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

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