Tag Archives: Jury instructions

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Appellate Principles, Duty of the court, Jury instructions

Case 001046

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not sua sponte instruct the jury that, for the defendant to be found guilty of petty theft, the jury must unanimously agree on the item(s) taken.

First Holding:

When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.

The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 464-465

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

Second Holding:

The failure to give a unanimity instruction may be harmless error if the appellate court can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 466

People v. Napoles (2002) 104 Cal.App.4th 108, 119 [erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors s not reasonably possible]

Third Holding:

(Gary note: The court described the ambiguity of the defendant’s intent in conjunction with moving Item A from the house to the garage, where he left it before fleeing. It concluded that the error was therefore not harmless. But it made an interesting comment regarding the respondent’s argument, which I set forth in this Third Holding.)

Because the Attorney General addresses only the [Item A], we take it as a concession there is reasonable doubt as to whether the jury could have come to a unanimous decision on the other possible acts of theft.

Authority:

People v. Bouzas (1991) 53 Cal.3d 467, 480 [state’s failure to respond to appellant’s point concedes it]

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

Case 000991

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the jury’s gang predicate offense findings, and we therefore reverse the true findings on the gang and gang firearm enhancements, as well as the gang special circumstance. We reject the defendant’s other arguments.

First Holding:

The role of the reviewing court in evaluating sufficiency of the evidence claims is a limited one. We 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 standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.

When there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground.

Authority:

People v. Ghobrial (2018) 5 Cal.5th 250, 277–278

Second Holding:

To prove the gang allegations true beyond a reasonable doubt, the prosecution had to show (1) the defendant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in criminal conduct by gang members.

A criminal street gang is defined as (1) an ongoing, organized association or group of three or more persons, whether formal or informal, (2) having as one of its primary activities the commission of one or more of the enumerated criminal acts, (3) having a common name or common identifying sign or symbol, and (4) whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

A pattern of criminal gang activity means (1) the commission of or conviction of, two or more enumerated criminal acts, (2) provided at least one of these offenses occurred after September 26, 1988, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, (3) the offenses were committed on separate occasions by two or more members, (4) the offenses commonly benefited a criminal street gang, and (5) the common benefit from the offenses is more than reputational.

The acts making up the pattern of gang activity are commonly referred to as predicate offenses.

Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential[,] current or previous witness or informant. The charged offenses cannot be used to satisfy the gang allegation requirements.

Authority:

PEN 186.22(b)(1), (e)(1), (e)(2), (f)

People v. Hin (2025) 17 Cal.5th 401, 460

People v. Shively (2025) 111 Cal.App.5th 460, 465-466

(Gary note:

(Gary note: The balance of this aspect of the opinion deals with the specifics of the evidence and inferences to be drawn, and the appellate court determined that the evidence in support of two of the three predicate offenses alleged by the prosecution were not supported by sufficient evidence. The court then reversed the jury’s true finding on the special circumstance gang allegation under section 190.2(a)(22) and the true findings on the gang enhancements charged under sections 186.22 (b)(1)(C) and 12022.53(d) and (e). It remanded the matter to the trial court for resentencing.

(The defendant unsuccessfully raised many other issues. I have included several as holdings (Third through Eighth) because they do state important legal principles even though unrelated to the sufficiency of evidence successful argument.)

Third Holding:

Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. Prosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it. When attacking the prosecutor’s remarks to the jury, the defendant must show that, in the context of the whole argument and the instructions, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ‘ “the trial with unfairness as to make the resulting conviction a denial of due process. Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the use of deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. he focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.

Authority:

People v. Centeno (2014) 60 Cal.4th 659, 666

People v. Leon (2015) 61 Cal.4th 569, 606

People v. Sanchez (2014) 228 Cal.App.4th 1517, 1528

Fourth Holding:

A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made a timely and specific objection at trial and requested an admonition. The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice. Consistent with that purpose, a court will excuse a defendant’s failure to object only if an objection would have been futile, or if an admonition would not have mitigated the harm caused by the misconduct.

Authority:

People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853

Fifth Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. 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. However, the trial court should only give instructions supported by substantial evidence.

Evidence is substantial’ for this purpose if it is sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. At the same time, instructions not supported by substantial evidence should not be given. It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.

Authority:

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

People v. Townsel (2016) 63 Cal.4th 25, 58

People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1950

Sixth Holding:

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. A claim of instructional error is reviewed de novo. We independently review the wording of a jury instruction to assess whether the instruction accurately states the law. The test is whether there is a reasonable likelihood that the jury understood the charge in a manner that violated the defendant’s rights.

Further, the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. Moreover, any theoretical possibility of confusion may be diminished by the parties’ closing arguments. Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

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

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

People v. Davison (1995) 32 Cal.App.4th 206, 212

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192

Seventh Holding:

The Watson standard of prejudice (i.e., the error is reversible when there is a reasonable probability defendant would have obtained a more favorable result in the absence of the error) applies to an instruction that misdirects the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions. In contrast, the Chapman standard of review (i.e., error is harmless only when it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained) applies when an instruction improperly describes or omits an element of the offense.

Authority:

People v. Campbell (2020) 51 Cal.App.5th 463, 493

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

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

Eighth Holding:

When a trial court orally misstates instructions that are legally correct in written form, the jury is presumed to be guided by the written instructions based upon copies of the instructions received for deliberations.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 687

People v. Mills (2010) 48 Cal.4th 158, 200–201 [written instructions control over verbal instructions]

People v. Wilson (2008) 44 Cal.4th 758, 803 [same]

People v. Mills (2012) 55 Cal.4th 663, 680 [we view the record as a whole, and consider the instructions in context]

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case 000989

Posted on by Gary McCurdy

Error and/or relief

On retrial of the gang allegations in light of the changes made by AB 333 since the original conviction, the court misinstructed the jury on the relationship between the gang’s predicate offenses and its organizational structure, its primary activities, or its common goals and principles. We reverse and remand for a new trial on the gang enhancements.

First Holding:

We review instructional error claims under an independent or de novo standard of review.

Authority:

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

Second Holding:

A trial court has a sua sponte duty to instruct on the essential elements of a special circumstance allegation or a sentence enhancement. Failure to properly instruct on an essential element is constitutional error, warranting reversal unless the error was harmless beyond a reasonable doubt.

Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

The beyond-a-reasonable-doubt standard requires the beneficiary of a federal constitutional error–the People–to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the ensuing verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409-410

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

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

People v. Cutting (2019) 42 Cal.App.5th 344, 349

People v. Pearson (2013) 56 Cal.4th 393, 463

Third Holding:

The California Supreme Court issued its decision in Clark in February 2024. The jury reached its verdicts in the instant case several months later. The CALCRIM instructions defining the gang enhancement allegations and special circumstances were amended a month later to add two sentences, as required by Clark:

“As used here, members collectively engage in or have engaged in a pattern of criminal gang activity when the crimes that make up the pattern of criminal gang activity can be connected to the gang as a whole. Collective engagement requires a connection between the crimes and the gang’s organizational structure or manner of governance, its primary activities, or its common goals and principles.”

The trial court used the older versions of CALCRIM No. 1401 (the gang enhancement), and CALCRIM No. 736 (the gang-murder special circumstance), and therefore did not instruct the jury on the required organizational nexus between the predicate crimes and the gang as interpreted and stated in Clark. This was plainly an instructional error committed by the trial court.

Authority:

People v. Clark (2024) 15 Cal.5th 743

Fourth Holding:

Although we have found that there was sufficient evidence to establish the nexus between the gang as an organization and the predicate offenses—a very low threshold—that is not the same as finding that failure to instruct on this element was harmless beyond a reasonable doubt.

In order to find the trial court’s instructional error harmless beyond a reasonable doubt, we must conclude that there is no reasonable possibility that the jury could have rendered different verdicts on the gang allegation and the gang-murder special circumstance absent the error. Because of the narrow focus of the trial, and because of the recent changes to the law, the importance of the People establishing the validity of the gang’s predicate offenses played an outsized role in these proceedings. We are not certain what 12 jurors might have done had they been properly instructed.

Because of the anomalies in this case, we must reverse the jury’s true findings on the gang enhancements because we cannot find that the instructional error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 463

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

Defenses, Jury instructions, Jury trial, Standard of review

Case 000935

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by instructing the jury that a person may lose the right to self-defense if he was the initial aggressor or a mutual combatant (CALCRIM No. 3471), or if he contrived the claim as a pretext to assault the victim (CALCRIM No. 3472). Given the evidence in this case, no reasonable jury could find these instructions applicable.

Although the error was harmless as to the instructions on mutual combat and contrived self-defense—as the jury was readily able to see the irrelevance of these instructions—the record reveals a reasonable likelihood that the jury was misled by the initial aggressor instruction. We therefore reverse the defendant’s murder conviction and remand for retrial.

First Holding:

The prosecution argues that the claim was forfeited by lack of objection. The defendant argues the issue is reviewable insofar as the challenged instructions directly undermined his self-defense claim and thus impaired his substantial rights.

Alternatively, he claims defense counsel rendered ineffective assistance in failing to fully object to both instructions.

We must address the defendant’s contention on its merits to determine whether there was an impairment of his substantial rights or ineffective assistance of counsel.

Authority:

PEN 1259

People v. Anderson (2007) 152 Cal.App.4th 919, 927

Second 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 corollary to this mandate is equally well-established: a trial court is not obligated to give an instruction if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction applicable. Indeed, it is error to give a jury instruction that is legally correct but has no application to the facts of the case.

Authority:

People v. St. Martin (1970) 1 Cal.3d 524, 531

People v. Schultz (1987) 192 Cal.App.3d 535, 539

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

Third Holding:

Giving an inapplicable instruction is subject to the traditional Watson test for prejudice, under which reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.

Such an error is generally only a technical error that does not constitute ground for reversal because juries are fully capable of analyzing the evidence, determining the facts, and realizing that an instruction does not apply. Juries are routinely told that some of the instructions may not apply, depending on their findings about the facts of the case and are directed to follow the instructions that do apply to the facts as they find them.

That being said, in some cases, the presence of an extraneous instruction may be confusing enough to become prejudicial.

Authority:

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

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

People v. Cross (2008) 45 Cal.4th 58, 67

People v. Schultz (1987) 192 Cal.App.3d 535, 539-540

Fourth Holding:

Regarding the instruction on initial aggressor, there are two problems. First, the paragraph the jury received on sudden escalation was written in terms of a defendant initiating an altercation with nondeadly force, the victim responding with deadly force, and then the defendant using deadly force in return.

But the evidence here suggested a different scenario, in which (arguably) the victim initiated with nondeadly force, the defendant responded with deadly force, the victim subsequently used deadly force, and then the defendant used deadly force in return. In other words, the standard language did not quite fit the facts here.

Second, and more to the point, we agree with the defendant that no reasonable jury could find the initial aggressor concept applicable—even with tailored sudden escalation language—given the timelapse between the two encounters. The reason that a defendant forfeits his claim to self-defense when he initiates a deadly attack is because the victim is then legally justified in using deadly force against the defendant. But no one is justified in using deadly force absent fear of imminent death or great bodily injury. 

(Gary note: The appellate court describes the facts as the defendant initially pointing a gun, then the altercation is over, but an hour later the victim shows up and starts throwing rocks at the defendant, who responds with deadly force. “Accordingly, the defendant’s conduct during the first encounter did not limit his self-defense claim; he did not have a duty to withdraw during the second encounter.”)

On this record, we discern a reasonable likelihood that at least one juror would have accepted that the defendant actually believed he needed to defend himself from imminent death or great bodily injury, but was misled into thinking the defendant lost his right to make that claim since he pulled the gun on the victim an hour earlier, and he did not communicate an intent to stop fighting during the second, fatal encounter.

We therefore conclude that giving the initial aggressor instruction was prejudicial, and accordingly reverse the murder conviction.

Authority:

In re Christian S. (2015) 7 Cal.4th 768, 773, fn. 1 [self-defense and imperfect self-defense may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified]

People v. Vasquez (2005) 136 Cal.App.4th 1176, 1179–1180 [imperfect self-defense is available when the victim’s use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant]

People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [for either perfect or imperfect self-defense, the fear must be of imminent harm]

Fifth Holding:

To the extent the prosecution contends that any error in instructing the jury on the limits of self-defense was harmless since the jury found the defendant guilty of first degree murder, we note that killing in self-defense is not necessarily inconsistent with premeditation and deliberation.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 265 (conc. opn. of Liu, J.)