Judicial Council Task Force on Jury Instructions

Appointed by the Honorable Chief Justice Ronald M. George

HON. CAROL A. CORRIGAN

Chair

HON. JAMES D. WARD,

Vice-Chair

COMMITTEE MEMBERS

MS. SARAH B. BENARD

HON. SANDRA LYNN MARGULIES

PROF. KATE BLOCH

HON. STEVEN Z. PERREN

HON. ROGER W. BOREN

MS. PAMELA A. RATNER

HON. FLORENCE-MARIE COOPER

MR. DENNIS RIORDAN

HON. JOHN DARLINGTON

PROF. PETER TIERSMA

MR. PATRICK R. DIXON

HON. RONALD W. TOCHTERMAN (RET.)

MR. JEFFREY GALE

ADMINISTRATIVE OFFICE OF THE COURTS

OFFICE OF GENERAL COUNSEL

MS. ELIZABETH GIVENS

MS. MELISSA W. JOHNSON

MS. RACHEL GRUNBERG

MS. MARY LIDDY


CRIMINAL JURY INSTRUCTIONS

TABLE OF CONTENTS

Preface ........................................................ i

Drafting Policy ............................................... iii

Key to Using Instructions ................................... vii

Series 10 - Pre-trial Instructions 1

10. Trial Process.......................................... 2

20. Cautionary Admonitions: Jury Conduct........... 3

30. Note-Taking........................................... 5

40. Reasonable Doubt.................................... 6

50. Evidence............................................... 8

60. Witnesses.............................................. 10

Series 100 - Post-trial Instructions 12

100. Duties of Judge and Jury............................ 13

110. Reasonable Doubt.................................... 15

120. Evidence.............................................. 17

130. Witnesses............................................. 19

190. Pre-Deliberation Instructions...................... 22

Series 300 - Evidence 24

300. Circumstantial Evidence............................ 25

306. All Available Evidence.............................. 28

307. Proof Need Not Show Actual Date................ 29

315. Consciousness of Guilt: False Statements........ 30

316. Consciousness of Guilt: Fabrication and Suppression of Evidence............................ 32

318. Defendant's Flight................................... 34

330. Limited Purpose Evidence in General............. 35

332. Multiple Defendants: Limited Admissibility of Evidence.............................................. 36

333. Multiple Defendants: Limited Admissibility of Defendant's Statement.............................. 37

338. Other Perpetrator..................................... 38

339. Consent: Prior Sexual Intercourse................ 39

340. Miranda-Defective Statements..................... 40

341. Adoptive Admissions............................... 41

348. Consciousness of Guilt: Failure to Deny or Explain Evidence.................................. 43

Series 400 - Witnesses 45

400. Single Witness's Testimony.................... 46

405. Character of Defendant......................... 48

406. Cross Examination of Character Witness.... 50

408. Exercise of Privilege by Witness.............. 51

415. Eyewitness Identification....................... 52

420. Testimony of Child 10 Years or Younger.... 55

Series 500 - Aiding & Abetting, Inchoate And Accessorial Crimes 56

500. Aiding and Abetting: General Principles......... 57

501. Aiding and Abetting: Intended Offenses......... 59

502. Aiding and Abetting: Natural and Probable Consequences Doctrine (Target and NonTarget Offenses Charged)........................... 64

503. Aiding and Abetting: Natural and Probable Consequences Doctrine (Only Non-Target Offense Charged).................................... 68

520. Accessories............................................ 71

530. Solicitation ........................................... 73

531. Solicitation of a Minor .............................. 76

Series 600 - Defenses & Insanity 77

600. Alibi................................................... 78

610. Duress or Threats.................................... 80

615. Necessity.............................................. 82

616. Necessity: Escape from Prison or County Jail... 84

620. Accident and Misfortune........................... 86

640. Unconsciousness.................................... 88

650. Voluntary Intoxication.............................. 91

660. Mistake of Fact....................................... 93

661. Mistake of Law...................................... 96

680. Statute of Limitations................................ 98

690. Insanity................................................ 102

Series 700 - Homicide 105

700. Homicide: General Principles...................... 106

701. Justifiable Homicide: Self-Defense............... 107

720. Murder With Malice Aforethought............... 111

721. Murder: Degrees.................................... 114

725. Felony Murder: First Degree...................... 119

726. Murder by Mayhem................................. 123

727. Felony Murder: Second Degree................... 126

730. Malice Versus Felony Murder..................... 131

735. Voluntary Manslaughter: Imperfect Self Defense............................................... 132

736. Voluntary Manslaughter: Heat of Passion....... 135

Series 800 - Robbery 139

800. Robbery............................................... 140

805. Robbery: Degrees................................... 145

810. Carjacking........................................... 147

Series 1050 - Arson 149

1050. Arson................................................ 150

1053. Arson: Great Bodily Injury....................... 153

1055. Arson: Inhabited Structure........................ 156

1060. Unlawfully Causing a Fire........................ 159

1063. Unlawfully Causing a Fire: Great Bodily Injury................................................ 161

1065. Unlawfully Causing a Fire: Inhabited Structure............................................. 164

1070. Possession of Incendiary or Flammable Device............................................... 167

1075. Attempted Arson................................... 169

Series 1100 - Sex Offenses 171

1100. Rape by Force, Fear, or Threats.................. 172

1105. Rape of an Intoxicated Woman .................. 176

1108. Rape of an Unconscious Woman................ 178

1110. Rape of a Disabled Woman....................... 180

1114. Rape by Fraud...................................... 182

1120. Oral Copulation by Force, Fear or Threats..... 184

1125. Oral Copulation of an Intoxicated Person...... 188

1128. Oral Copulation of an Unconscious Person.... 190

1130. Oral Copulation of a Disabled Person.......... 192

1132. Oral Copulation of a Disabled Person in a Mental Hospital..................................... 194

1134. Oral Copulation by Fraud......................... 196

1135. Oral Copulation while in Custody............... 197

Series 1300 - Theft 199

1300. Theft by Larceny................................... 200

1305. Theft: Degrees....................................... 204

1308. Theft by False Pretense............................ 206

1310. Theft by Trick...................................... 210

1312. Theft by Embezzlement........................... 212

Series 1400 - Burglary 214

1400. Burglary............................................. 215

1405. Burglary: Degrees.................................. 221

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TASK FORCE ON JURY INSTRUCTIONS

CRIMINAL SUBCOMMITTEE

Preface

Introduction

The California Judicial Council Task Force on Jury Instructions has been charged by Chief Justice Ronald George with writing "jury instructions that both accurately state the law and are more easily understandable to jurors."[i] The draft instructions that follow are only a section of the much larger set of instructions that the Task Force Subcommittee on Criminal Instructions has drafted. The Subcommittee hopes that release of this group of instructions now will stimulate public critique and enable the drafters to refine both the particular instructions and the more global choices about format and approach as the drafting effort continues.

The Task Force has based the instructions on a de novo review of relevant decisional precedent and statutory materials because a license to use the copyrighted CALJIC materials was not available. These materials are circulated under the Copyright of the California Judicial Council. They have not yet been officially approved for use.

Background: Creation of the Task Force

In December of 1995, the Judicial Council established a Blue Ribbon Commission on Jury System Improvement. The Commission's mission was to "conduct a comprehensive evaluation of the jury system and [make] timely recommendations for improvement."[ii] After extensive study, the commission made a number of recommendations to the Chief Justice and the Judicial Council, one of which was that the Council create a Task Force on Jury Instructions to draft more understandable instructions. The recommendation stemmed from the Commission's conclusion that "jury instructions as presently given in California and elsewhere are, on occasion, simply impenetrable to the ordinary juror."[iii]

In light of the Commission's view that jurors could be accurately instructed on the law in language more easily absorbed and understood, the Judicial Council acted on the recommendation, creating the current Task Force. The Chief Justice noted the two principal goals underlying the creation of more intelligible instructions are "(1) making juror's experiences more meaningful and rewarding and (2) providing clear instructions that will improve the quality of justice by insuring that jurors understand and apply the law correctly in their deliberations."iv

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Purpose of this Release for Comment

The Chief Justice encouraged the Task Force to solicit broad input from those representing a wide rage of views and experience. In response, the drafters seek public commentary at this intermediate point in the process. Commentary at this stage can inform both revisions of existing drafts and choices for the remaining instructions. We have a released a small but representative sample rather than a much larger number of completed drafts to facilitate input on an expedited basis. The Task Force is interested in reactions to style, format, legal accuracy, clarity, and usefulness of accompanying bench notes and commentary. The Task Force is not a law revision commission. Our goal is to produce instructions that accurately explain the existing law in a manner the average juror can readily understand and that the trial bench and bar will find helpful. We appreciate your willingness to assist in this effort.


i. Videotape, Address of Chief Justice Ronald George to Task Force on Jury Instructions (Judicial Council of California, Administrative Office of the Courts 2/18/97).

ii. Final Report of the Blue Ribbon Commission on Jury System Improvement (Judicial Council of California,Administrative Office of the Courts 5/6/1996) p.1.

iii. Id. at p. 93

iv. See, supra, note 1.

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Drafting Policies

The members of the task force carefully considered, and sometimes extensively debated, many issues concerning how the instructions should be drafted. The decisions of the task force on the most significant of those issues are discussed and explained below.

Drafting Guidelines

The task force reviewed the literature addressing jury instructions and considered the recommendations for improving instructional clarity and comprehensibility. (See, e.g., Lind and Partridge, Suggestions for Improving Juror Understanding of Instructions; Pattern Jury Instructions Suggested by the Federal Judicial Center (1987); Schwarzer, Communicating with Juries: Problems and Remedies , 69 Cal.L.Rev. 731 (1981); Charrow and Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Columbia L.Rev. 1306 (1979); and Tiersma, Reforming the Language of Jury Instructions, 22 Hofstra L.Rev. 37 (1993).) When drafting the instructions, we applied many of the specific techniques suggested by the literature, including the following:

* Avoid using nominalizations.

* Use "modal" verbs (must, should, may) to clarify the jury's task.

* Avoid redundancy or unnecessary words.

* Use the active voice.

* Use short sentences.

* Keep the subject close to the verb; move dependent phrases to the beginning or end of the sentence.

* Avoid omitting relative pronouns and auxiliary verbs.

* Avoid double negatives.

* Be concrete rather than abstract.

* Avoid instructing the jurors about things they do not need to know.

* Adopt a structure that is logical and easy to follow.

In addition to these general principles, the task force adopted the following specific guidelines.

References to the parties

The task force chose to refer to the lawyer for the People as "the prosecutor." Although some members thought the word prosecutor may have a negative connotation compared to "district attorney," most felt that it was a neutral word and that jurors were likely to understand it. "District attorney," although neutral

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and understandable, would not always be accurate, because a different agency (such as the office of the Attorney General) might prosecute the case, and we did not want the judge to have to modify each instruction in such an instance. After much consideration, we chose to use "the defendant" to refer to the party being prosecuted. Most members felt that this term did not have a negative connotation, and that it was commonly used in the courtroom.

Statutory and caselaw formulations

The task force felt strongly that it was not our role to suggest changes in the law or to resolve conflicts in the case law interpreting statutes. Rather, our mandate was to restate the existing law in understandable terms. We closely followed formulations of the law contained in statutes and cases, substituting a more understandable word if an accurate synonym for the legal language could be found, and defining terms when necessary.

For example, where proof by a "preponderance of the evidence" was required, we substituted the equivalent language "more likely than not." Conversely, in the "reasonable doubt" instruction, we considered adopting the formulation used in the federal courts. The federal instruction did not include the concept that the jury must have an abiding conviction, which is part of the standard set out in Penal Code section 1096. We chose to use the language contained in the California statute, and clarified it by reordering and substituting simpler terms where appropriate, without omitting any of the concepts contained in the statute.

In a few instances where a clear conflict existed in the case law, we drafted alternative formulations to allow the trial judge to decide which was appropriate. If the statutory language was ambiguous, but had been clarified by case law, we used the approved and more comprehensible language.

Tailoring the instruction to the case

We recognized that sometimes it would be helpful for the jurors to have instructions tailored to the specific case. For example, in some jurisdictions the name of the defendant and the name of the victim are inserted into the instruction. Competing with the benefit of this approach is the potential burden imposed on trial judges and their staffs who must prepare the instructions. At some point in the future, the instructions will undoubtedly be available in an electronic format and the substitution of names or other specific words within the instructions will be possible with a simple keystroke. Because many judges currently rely on instructions printed on paper, however, we did not want to make the use of these instructions unnecessarily complicated or increase the risk of error and therefore did not rely on a `fill-in-the-blank' approach.

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Generally, we did not require that the instructions be tailored to the facts of the case, except (1) if the instruction would otherwise be confusing (for example, if the instruction on the defendant's statements were given in a multi-defendant case), or (2) if the instruction would be given only on request, so that the attorney requesting it would have the opportunity to tailor it to the facts (for example, see instruction 408, Exercise of Privilege by Witness.).

Elements of the Crimes

The task force gave a good deal of thought to defining the elements of crimes. The major issue was whether to present definitions in the abstract ("a theft is committed when a person takes property ...") or to present them as applied to the case ("the defendant is guilty of robbery if he took property ....") The task force decided to define the crimes concretely with reference to the defendant and in the past tense. This approach is endorsed by the literature on juror comprehension and gives the jury clearer direction in making its decision.

Structure

We attempted to organize instructional issues and concepts logically. Related concepts and fragments integrated into a single instruction rather than presented as discreet, unrelated pieces of information.

Tone

The task force's mandate is to produce instructions that are accurate and comprehensible to jurors. In setting a tone, the task force attempted to balance the need for clarity of language and `plain English' choices with the formality necessary given the importance of the instructions.

Bench Notes

The bench notes are organized into categories. Following each instruction is a statement indicating whether the judge has a duty to give the instruction, either sua sponte or on request. A section for related instructions follows and lists other associated and commonly given instructions.

The next section describes the authority relied on for the instructional language and other definitions. We have also included a "Commentary" section where specific drafting choices are explained, or other issues are addressed by the task force. Finally, a list of approved lesser-included offenses is provided for the instructions on elements of crimes and a section on related issues is included for

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all instructions. The latter section is intended to address finer points of law and factually specific issues relating to the instructions.

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Key to Using Instructions

The instructions are written in bold face type. Material that is bracketed is optional and should be given under the facts of the case. Material that is in parentheses must be given but a choice must be made.

For example, in the arson instruction a definition of structure has been provided. (See instruction 1050, Arson, for full text.)

[A structure is any (building/bridge/tunnel/power plant/commercial orpublic tent).]

The brackets around the material mean that the definition is given only if a structure has allegedly been burned. If this definition is given, the type of structure would be selected from the alternatives enclosed in parenthesis depending upon the facts of the case.

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Series 10 - Pre-trial Instructions

10. Trial Process

20. Cautionary Admonitions: Jury Conduct

30. Notetaking

40. Reasonable Doubt

50. Evidence

60. Witnesses

Task Force Comments on this Series

The task force decided that the optimal way to organize the many pre-trial instructions required or recommended to be given was in the form of a comprehensive script. This material is organized in the categories listed above and contains instructions that must be given sua sponte in every case in addition to generally applicable instructions that are recommended in every case.

A similar "posttrial" script has been included to be delivered at the close of evidence. Although there is some overlap in the instructional issues in each script, the task force believed it valuable to provide judges with tailored instructions, which did not require modification, for each stage of the trial.

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10. Trial Process (Before or During Voir Dire)


1. Jury service is very important and I would like to welcome you and thank you for your service. Before we begin, I am going to describe for you how the trial will be conducted, and explain what you and the lawyers and I will be doing. At the end of the trial, I will give you more detailed guidance on how you are to go about reaching your decision.

2. The first step in the trial is the prosecutor's opening statement.

The defense may also choose to give an opening statement. An opening statement is not evidence. Its only purpose is to give you an overview of what the attorneys expect the evidence will show.

3. Next, the prosecution will offer its evidence. Evidence usually includes witness 12 testimony and exhibits. After the prosecution presents its evidence, the defense may also present evidence but is not required to do so. Because (he/she) is presumed innocent, the defendant does not have to prove that (he/she) is not guilty.

4. After you have heard all the evidence and the attorneys give their final arguments, I will instruct you on the law that applies to the case. You must follow all of my instructions, even if you disagree with them.

5. After you have heard the arguments and instructions, you will go to the jury room to deliberate and reach a decision.


BENCH NOTES

Instructional Duty

There is no sua sponte duty to give an instruction outlining how the trial will proceed. This instruction has been provided for the convenience of the trial judge who may wish to explain the trial process to jurors.

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20. Cautionary Admonitions: Jury Conduct (After Jury is Selected)


1. I will now explain some basic rules of law and procedure. These rules ensure that both sides receive a fair trial.

2. During the trial, do not talk about the case or about any of the people or any subject involved in it with anyone, not even your family or friends. You must not talk about these things with the other jurors either, until the time comes for you to begin your deliberations.

3. As jurors, you may discuss the case together only after all of the evidence has been presented, the attorneys have completed their arguments, and I have instructed you on the law. After I tell you to begin your deliberations, you must11 discuss the case only in the jury room, and only when all jurors are present.

4. You must not listen to anyone who tries to talk to you about the case or about any of the people or subjects involved in it. If someone asks you about the case, tell him or her that you cannot discuss it. If that person keeps talking to you about the case, you must end the conversation and immediately report the incident to the bailiff. If anyone tries to influence you or any other member of the jury, you must promptly report that to the bailiff.

5. When the trial has ended and you have been released as jurors, you may discuss the case with anyone. But under California law, you must wait at least 90 days before negotiating or agreeing to accept any payment for information about the case.

6. You must not allow anything that happens outside of the courtroom to affect your decision. During the trial, do not read, listen to, or watch any news reports about the case.

7. Do not do any research on your own or as a group. Do not use a dictionary or other reference materials, investigate the facts or law, conduct any experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

8. Keep an open mind throughout the trial. Do not make up your mind about the verdict or any issue until after you have discussed the case with the other jurors during deliberations. Do not take anything I say or do during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.

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9. Do not let bias, sympathy, prejudice, or public opinion influence your decision.

10. If a juror violates one of these directions, please notify the bailiff promptly.

[11. If, during the trial, you have a question that you believe should be asked of a witness, you may write out the question and send it to me through the bailiff. I will discuss the question with the attorneys and decide whether it may be asked.]


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct the jurors on how they must conduct themselves during trial. (Pen. Code, 1122.)

The instruction in paragraph 11 may be given at the court's discretion.

AUTHORITY

Statutory Admonitions Pen. Code, 1122.

Avoid Discussing the Case People v. Pierce (1979) 24 Cal.3d 199; In re Hitchings (1993) 6 Cal.4th 97; In re Carpenter (1995) 9 Cal.4th 634, 646-58.

Avoid News Reports People v. Holloway (1990) 50 Cal.3d 1098, 1108-11.

No Independent Research People v. Karis (1988) 46 Cal.3d 612, 642; People v. Castro (1986) 184 Cal.App.3d 849, 853; People v. Sutter (1982) 134 Cal.App.3d 806, 820.

No Bias, Sympathy, or Prejudice People v. Hawthorne (1992) 4 Cal.4th 43, 73.

Judge's Conduct as Indication of Verdict People v. Hunt (1915) 26 Cal.App. 514, 517.

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30. Note-Taking


You have been given notebooks and may take notes during the trial. Please leave your notebooks on your chair at the end of each court session. You may take your notes into the jury room during deliberations. Here are some points to consider if you take notes:

1. Your notes may be inaccurate or incomplete.

2. The court reporter is making a record of everything said during the trial. During your deliberations, you may ask that the court reporter's notes of particular testimony be read to you.

3. Note-taking may tend to distract you. It may affect your ability to listen carefully to all the testimony and to watch the witnesses as they testify.

4. You should use your notes only to remind yourself of what happened during the trial. If you cannot agree about what the testimony was on an important point, you may ask that the court reporter's record be read to you. You must accept the court reporter's record as accurate.

I do not mean to discourage you from taking notes. I believe you may find it helpful. However, if you decide to take notes, please bear in mind the points that I have made.


BENCH NOTES

Instructional Duty

There is no sua sponte duty to instruct on note-taking; however, instruction on this topic has been recommended by the Supreme Court. (People v. Morris (1991) 53 Cal.3d 152, 214.)

AUTHORITY

Jurors' Use of Notes People v. Whitt (1984) 36 Cal.3d 724, 746.

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40. Reasonable Doubt


1. I will now explain the presumption of innocence, the prosecutor's burden of1 proof, and the charges against the defendant. The defendant in this case is charged with ______ [insert charge[s]] and has pleaded not guilty. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because (he/she) has been arrested and charged with a crime.

2. A defendant in a criminal case is presumed to be innocent. This presumption requires that the prosecutor prove each element of the crime[s] [and special allegation[s]] beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

3. In deciding whether the prosecution has proven its case beyond a reasonable doubt, you must impartially compare and consider all the evidence. Unless the evidence proves the defendant guilty beyond a reasonable doubt, (he/she) is entitled to an acquittal and you must find (him/her) not guilty.


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on the presumption of innocence and the state's burden of proof before deliberations. (People v. Vann (1974) 12 Cal.3d 220, 225- 27; People v. Soldavini (1941) 45 Cal.App.2d 460, 463; People v. Phillips (1997) 59 Cal.App.4th 952, 956-58.) This instruction is included in this section for the convenience of judges who wish to instruct on this point during voir dire or before testimony begins.

AUTHORITY

Instructional Requirements Pen. Code, 1096, 1096a; People v. Freeman (1994) 8 Cal.4th 450, 503-04; Sandoval v. California (1994) 511 U.S. 1, 16-17; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997.

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COMMENTARY

This instruction is based directly on Penal Code section 1096. The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative. The instruction also refers to the jury's duty to impartially compare and consider all the evidence. (See Sandoval v. California (1994) 511 U.S. 1, 16-17.) The appellate courts have urged the trial courts to exercise caution in modifying the language of section 1096 to avoid error in defining reasonable doubt. (See People v. Freeman (1994) 8 Cal.4th 450, 503-04; People v. Garcia (1975) 54 Cal.App.3d 61.) The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language.

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50. Evidence


1. It is your duty to determine what the facts are in this case. You must use only the1 evidence that is presented in the courtroom to help you make this determination. "Evidence" is the testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence.

2. Nothing that the attorneys say is evidence. In their opening statements and final arguments, the attorneys will discuss the case, but their remarks are not evidence. Their questions are also not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they help you understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asks a question that suggests it is.

3. During the trial, the attorneys may object to questions asked of a witness. If an objection is proper, I will sustain it, the witness will not be permitted to answer, and you must ignore the question. If the witness does not answer, do not guess what the answer might have been or why I ruled as I did. Attorneys may also move to strike testimony from the record. If I grant the motion and strike the testimony, you must ignore it.

4. You must disregard anything you see or hear when the court is not in session, even if it is done or said by a party or witness.

[If it appears that circumstantial evidence will be substantially relied on in the case, the trial court may wish to instruct on its definition here; See instruction 300, Circumstantial Evidence.]


BENCH NOTES

Instructional Duty

There is no sua sponte duty to instruct on these evidentiary topics; however, instruction on these principles has been approved. (See People v. Barajas (1983) 145 Cal.App.3d 804, 809; People v. Samayoa (1997) 15 Cal.4th 795, 843-44; People v. Horton (1995) 11 Cal.4th 1068, 1121.)

AUTHORITY

Evidence Defined Evid. Code, 140.

Arguments Not Evidence People v. Barajas (1983) 145 Cal.App.3d 804, 809.

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Questions Not Evidence People v. Samayoa (1997) 15 Cal.4th 795, 843-44.

Striking Testimony People v. Horton (1995) 11 Cal.4th 1068, 1121.

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Pretrial Instructions

60. Witnesses


1. You alone must judge the credibility or believability of the witnesses. In deciding1 whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness's race, sex, religion, [or] national origin, [or ______] [insert any other potential impermissible bias as appropriate]. You may believe all, none, or part of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.

2. In evaluating a witness's testimony, consider the following questions:

a. How well could the witness see or hear [or otherwise sense] the things about which the witness testified?

b. How well was the witness able to remember and describe what happened?

c. What was the witness's behavior while testifying?

d. Did the witness understand the questions and answer them directly?

e. Did the witness have a reason to lie, such as a bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?

f. What was the witness's attitude about the case or about testifying?

g. Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?

h. How reasonable is the testimony when you consider all the other evidence in the case?

[i. Did other evidence prove or disprove any fact about which the witness testified?]

[j. Did the witness admit to being untruthful?]

[k. What is the witness's character for truthfulness?]

[l. Has the witness been convicted of a felony?]

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[m. Has the witness engaged in [other] conduct that reflects on his or her believability?]

3. Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.

4. If you decide that a witness deliberately lied, consider the importance of the lie. You may choose not to believe anything that witness says. However, if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest.


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on factors relevant to a witness's credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-84.) Although there is no sua sponte duty to instruct on inconsistencies in testimony or a witness who lies, there is authority approving instruction on both topics. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.)

Bracketed Factors

There is a split of authority on whether question "l" relating to a witness's prior conviction for a felony, should be given sua sponte. (Compare People v. Mayfield (1972) 23 Cal.App.3d 236, 245 [sua sponte duty] with People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [no sua sponte duty].) This point should not be included when a prior felony conviction is an element of the charged crime. (People v. Dewberry (1959) 51 Cal.2d 548, 554.)

Questions "i," "j," and "k" have been approved as appropriate factors to be considered by the jury in evaluating the credibility of witnesses. (Evid. Code, 780(e), (i), and (k).) Because they are fact specific they should only be given if supported by the evidence.

Question "m" refers to evidence of other misconduct introduced to impeach a witness. (People v. Wheeler (1992) 4 Cal.4th 284.)

AUTHORITY

Factors Evid. Code, 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-84.

Inconsistencies Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426.

Witness Who Lies People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.

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Series 100 - Post-trial Instructions

100. Duties of Judge and Jury

110. Reasonable Doubt

120. Evidence

130. Witnesses

190. Pre-Deliberation Instructions

Task Force Comments on this Series

Like the pretrial script, the posttrial script is designed as a comprehensive way to instruct on general points required to be given at the close of evidence. This material is organized in the categories listed above and contains instructions that must be given sua sponte in every case, in addition to generally applicable instructions that are recommended in every case.

To facilitate an orderly presentation of ideas, the post trial script was organized so that other case-specific instructions could be inserted and given in a logical sequence.

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100. Duties of Judge and Jury


1. Members of the jury, I will now instruct you on the law that applies to this case. [I will give you a copy of the instructions to use in the jury room.] [Each of you has a copy of these instructions so that you can follow along as I read them to you.]

2. You must decide what the facts are. It is up to you, and only you, to decide what happened, based only on the evidence that you have seen and heard in this trial.

3. Do not let bias, sympathy, prejudice, or public opinion influence your decision.

4. You must reach your verdict without any consideration of punishment.

5. You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments conflict with my instructions, you must still follow my instructions.

6. Pay careful attention to all the instructions that I give you, because they state the law that applies to this case. Consider all the instructions together. If I repeat any instruction, this does not necessarily mean that it is more important than any others.

7. After you have decided what the facts are, you may find that some instructions do not apply. You must then follow the instructions that do apply to the facts, in order to reach your verdict.


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct that the jurors are the exclusive judges of the facts and that they are entitled to a copy of the written instructions when they deliberate. (Pen. Code, 1093(f), 1137.) The court should select the appropriate bracketed alternative discussing written instructions. Although there is no sua sponte duty to instruct on the other topics described in this instruction, there is authority approving instruction on these topics.

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AUTHORITY

Copies of Instructions Pen. Code, 1093(f), 1137.

Jury to Decide the Facts Pen. Code, 1127.

Judge Determines Law Pen. Code, 1124, 1126.

No Bias, Sympathy, or Prejudice People v. Hawthorne (1992) 4 Cal.4th 43, 73.

Do Not Consider Punishment People v. Nichols (1997) 54 Cal.App.4th 21, 24.

Attorney's Comments Are Not Evidence People v. Stuart (1959) 168 Cal.App.2d 57, 60-61.

Consider All Instructions Together People v. Osband (1996) 13 Cal.4th 622, 679; People v. Rivers (1993) 20 Cal.App.4th 1040, 1046; People v. Shaw (1965) 237 Cal.App.2d 606, 623.

Follow Applicable Instructions People v. Palmer (1946) 76 Cal.App.2d 679, 688.

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110. Reasonable Doubt


1. The fact that a criminal charge has been filed against the defendant is not1 evidence that the charge is true. You must not be biased against the defendant just because (he/she) has been arrested and charged with a crime.

2. A defendant in a criminal case is presumed to be innocent. This presumption requires that the prosecutor prove each element of the crime[s] [and special allegation[s]] beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

3. In deciding whether the prosecution has proven its case beyond a reasonable doubt, you must impartially compare and consider all the evidence. Unless the evidence proves the defendant guilty beyond a reasonable doubt, (he/she) is entitled to an acquittal and you must find (him/her) not guilty.

[The court may give instructions on elements of the crime here.]


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on the presumption of innocence and the state's burden of proof. (People v. Vann (1974) 12 Cal.3d 220, 225-27; People v. Soldavini (1941) 45 Cal.App.2d 460, 463; People v. Phillips (1997) 59 Cal.App.4th 952, 956-58.)

AUTHORITY

Instructional Requirements Pen. Code, 1096, 1096a; People v. Freeman (1994) 8 Cal.4th 450, 503-04; Sandoval v. California (1994) 511 U.S. 1, 16-1; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997.

COMMENTARY

This instruction is based directly on Penal Code section 1096. The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative. The instruction also refers to the jury's duty to impartially compare and consider all the evidence. (See Sandoval v. California (1994) 511 U.S. 1,

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16-17.) The appellate courts have urged the trial courts to exercise caution in modifying the language of section 1096 to avoid error in defining reasonable doubt. (See People v. Freeman (1994) 8 Cal.4th 450, 503-04; People v. Garcia (1975) 54 Cal.App.3d 61.) The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language.

RELATED ISSUES

Reasonable Doubt Raised by Defense

A defendant is entitled, on request, to a nonargumentative instruction that directs attention to the defense's theory of the case and relates it to the state's burden of proof (People v. Sears (1970) 2 Cal.3d 180, 190 [error to deny requested instruction relating defense evidence to the element of premeditation and deliberation].) Such an instruction is sometimes called a pinpoint instruction. "What is pinpointed is not specific evidence as such, but the theory of the defendant's case. It is the specific evidence on which the theory of the defense `focuses' which is related to reasonable doubt." (People v. Adrian (1982) 135 Cal.App.3d 335, 338 [court erred in refusing to give requested instruction relating self-defense to burden of proof]; see also People v. Granados (1957) 49 Cal.2d 490 [error to refuse instruction relating reasonable doubt to commission of felony in felony-murder case]; People v. Brown (1984) 152 Cal.App.3d 674, 677-78 [error to refuse instruction relating reasonable doubt to identification].) (See instruction 415, Eyewitness Identification for an example of a pinpoint instruction that relates reasonable doubt to the defense theory of the case.)

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120. Evidence


1. It is your duty to determine what the facts are in this case. You must use only the1 evidence that was presented in this courtroom. "Evidence" is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.

2. Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence. The attorney's questions are significant only if they helped you to understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was.

3. During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. Attorneys may have moved to strike testimony. If I granted the motion and struck the testimony, you must ignore it.

4. You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses.

[5. While we were hearing evidence, you were told that the prosecutor and the defense agreed, or stipulated, to certain facts. This means simply that they both accept those facts as true. Therefore, there is no need for evidence on those points, and you must accept those facts as true.]

[If circumstantial evidence has been substantially relied on in the case, the trial court can instruct on its definition here; See instruction 300, Circumstantial Evidence.]

[6. As you know, more than one defendant is on trial here. I am going to remind you now which individuals are charged with which crimes.

______ has been charged with ______.

______ has been charged with ______.

You must decide the guilt or innocence of each defendant separately. This means that you must separately consider the evidence as it applies to each defendant.

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You must also give separate consideration to each crime charged against each defendant.

If you cannot reach a verdict on (all/both) of the defendants, or on all of the charges against any one defendant, you must give your verdict on any defendant or charge upon which you have unanimously agreed.]

[7. As you know, the defendant has been charged with more than one crime. You must decide defendant's guilt or innocent of each crime separately. This means that you must separately consider the evidence as it applies to each crime.


BENCH NOTES

Instructional Duty

There is no sua sponte duty to instruct on these evidentiary topics; however, instruction on these topics has been approved. (People v. Barajas (1983) 145 Cal.App.3d 804, 809; People v. Samayoa (1997) 15 Cal.4th 795, 843-44; People v. Horton (1995) 11 Cal.4th 1068, 1121.) If stipulations were given, give the bracketed instruction in paragraph 5. If more than one defendant is on trial, give the bracketed instruction in paragraph 6. If defendant has been charged with more than one crime, give the bracketed instruction in paragraph 7.

AUTHORITY

Evidence Defined Evid. Code, 140.

Stipulations Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141-42.

Arguments Not Evidence People v. Barajas (1983) 145 Cal.App.3d 804, 809.

Questions Not Evidence People v. Samayoa (1997) 15 Cal.4th 795, 843-44.

Striking Testimony People v. Horton (1995) 11 Cal.4th 1068, 1121.

RELATED ISSUES

Non-Testifying Courtroom Conduct

There is authority for an instruction informing the jury to disregard defendant's in-court, but non-testifying behavior. (People v. Garcia (1984) 160 Cal.App.3d 82, 90 [defendant was disruptive in court; court instructed jurors they should not consider this behavior in deciding guilt or innocence].) If the defendant has put his or her character in issue or another basis for relevance exists, however, this instruction should not be given. (People v. Garcia, supra, at p. 91, fn. 7; People v. Foster (1988) 201 Cal.App.3d 20, 25.)

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Post-Trial Instructions 130. Witnesses


1. You alone must judge the credibility or believability of the witnesses. In deciding1 whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness's race, sex, religion, or national origin, [or ______] [insert any other impermissible bias as appropriate]. You may believe all, none, or part of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.

2. In evaluating a witness's testimony, consider the following questions:

a. How well could the witness see or hear [or otherwise sense] the things about which the witness testified?

b. How well was the witness able to remember and describe what happened?

c. What was the witness's behavior while testifying?

d. Did the witness understand the questions and answer them directly?

e. Did the witness have a reason to lie, such as a bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?

f. What was the witness's attitude about the case or about testifying?

g. Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?

h. How reasonable is the testimony when you consider all the other evidence in the case?

[i. Did other evidence prove or disprove any fact about which the witness testified?]

[j. Did the witness admit to being untruthful?]

[k. What is the witness's character for truthfulness?]

[l. Has the witness been convicted of a felony?]

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[m. Has the witness engaged in [other] conduct that reflects on his or her believability?]

3. Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.

4. If you decide that a witness deliberately lied, consider the importance of the lie. You may choose not to believe anything that witness says. Or if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

[Instructions on the evaluation of certain types of witnesses and evidence should be given here. The relevant instructions should be selected from Series 300 and Series 400.]


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on factors relevant to a witness's credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-84.) Although there is no sua sponte duty to instruct on inconsistencies in testimony or a witness who lies, there is authority approving instruction on both topics. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.)

Bracketed Factors

There is a split of authority on whether question "l," relating to a witness's prior conviction for a felony, should be given sua sponte. (Compare People v. Mayfield (1972) 23 Cal.App.3d 236, 245 [sua sponte duty] with People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [no sua sponte duty].) This point should not be included when a prior felony conviction is an element of the charged crime. (People v. Dewberry (1959) 51 Cal.2d 548, 554.)

Questions "i," "j," and "k" have been approved as appropriate factors to be considered by the jury in evaluating the credibility of witnesses. (Evid. Code, 780(e), (i), and (k).) Because they are fact specific they should only be given if supported by the evidence.

Question "m" refers to evidence of other misconduct introduced to impeach a witness. (People v. Wheeler (1992) 4 Cal.4th 284.)

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AUTHORITY

Factors Evid. Code, 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-84.

Inconsistencies Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426.

Witness Who Lies People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.

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190. Pre-Deliberation Instructions


1. When you go to the jury room, the first thing you should do is choose a presiding juror. The presiding juror should see to it that your discussions are carried on in a businesslike way and that everyone has a fair chance to be heard.

2. It is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong. But do not give up your honest beliefs just because other jurors disagree with you.

3. Please do not state your opinions too strongly at the beginning of your11 deliberations or immediately announce how you plan to vote. Try to keep an open mind so that you and your fellow jurors can openly exchange your ideas about this case. Deliberations will be easier if you treat your fellow jurors courteously.

4. During the trial, several items were received into evidence as exhibits. [These exhibits will be sent into the jury room with you when you begin to deliberate.] [You may examine whatever exhibits you think will help you in your deliberations. If you wish to see any exhibits, please request them in writing.]

5. If you need to communicate with me while you are deliberating, you may send a note through the bailiff, signed by the presiding juror or by one or more members of the jury. No member of the jury should try to communicate with me except by a written note. I will consult with the attorneys before I answer your questions, so it may take some time. You should continue your deliberations while you wait for my answer. I will answer any questions either in writing or orally here in open court. Do not tell me or anyone else how the jurors stand on the question of guilt, unless I ask you to do so.

6. Your verdict [on each count and any special finding(s)] must be unanimous. This means that, to return a verdict, all twelve of you must agree to it.

7. It is not my role to tell you what your verdict should be. [Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.]

8. You will be given verdict forms. As soon as all twelve jurors have agreed upon a verdict, the presiding juror must date and sign the appropriate verdict form(s) and

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notify the bailiff. [If you are able to reach a unanimous decision on only one or only some of the (charges/or/defendants), fill in those verdict forms only, and notify the bailiff.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct that the jury's verdict must be unanimous. Although there is no sua sponte duty to instruct on the other topics relating to deliberations, there is authority approving such instructions. (See People v. Gainer (1977) 19 Cal.3d 835, 856; People v. Selby (1926) 198 Cal. 426, 439; People v. Hunt (1915) 26 Cal.App. 514, 517.)

If the court automatically sends exhibits into the jury room, the court should so instruct using the first bracketed sentence in paragraph 4. If not, the court should alert the jury that they may request the exhibits in writing and instruct using the second bracketed sentence in paragraph 4.

If the court chooses to comment on the evidence, then the instruction found in the last sentence of paragraph 7 should not be given. (See Pen. Code, 1127, 1093(f).)

AUTHORITY

Duty to Deliberate People v. Gainer (1977) 19 Cal.3d 835, 856.

Keep an Open Mind People v. Selby (1926) 198 Cal. 426, 439.

Exhibits Pen. Code, 1137.

Questions Pen. Code, 1138.

Unanimous Verdict Cal. Const., art. I, 16; People v. Howard (1930) 211 Cal. 322, 325; People v. Kelso (1945) 25 Cal.2d 848, 853-54; People v. Collins (1976) 17 Cal.3d 687, 692.

Judge's Conduct as Indication of Verdict People v. Hunt (1915) 26 Cal.App. 514, 517.

Verdict Forms Pen. Code, 1140.

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Series 300 - Evidence

300. Circumstantial Evidence

306. All Available Evidence

307. Proof Need Not Show Actual Date

315. Consciousness of Guilt: False Statements

316. Consciousness of Guilt: Fabrication and Suppression of Evidence

318. Defendant's Flight

330. Limited Purpose Evidence in General

332. Multiple Defendants: Limited Admissibility of Evidence

333. Multiple Defendants: Limited Admissibility of Defendant's Statement

338. Other Perpetrator

339. Consent: Prior Sexual Intercourse

340. Miranda-Defective Statements

341. Adoptive Admissions

348. Consciousness of Guilt: Failure to Deny or Explain Evidence

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300. Circumstantial Evidence


Facts may be proven in two ways: directly or indirectly by circumstantial evidence. Direct evidence proves a fact by itself. If, for example, witnesses see something, then come to court and testify, their testimony is direct evidence of what they saw. Circumstantial evidence, on the other hand, proves a fact based on a logical conclusion. Here is an example of how circumstantial evidence works: a party proves Fact A, then argues that because Fact A is true, logically you should conclude that Fact B is also true. Both direct and circumstantial evidence are acceptable. Neither is necessarily more or less reliable than the other.

You cannot convict (a/the) defendant based on circumstantial evidence unless you examine all reasonable conclusions that can be drawn from that evidence. If there is only one reasonable conclusion, you must accept it. On the other hand, if two or more reasonable conclusions can be drawn and one points to innocence, you must accept the one that points to innocence. In other words, you may not decide that the defendant is guilty based on circumstantial evidence unless (his/her) guilt is the only reasonable conclusion that can be drawn from the circumstantial evidence.

Any fact that is a link in a chain of circumstantial evidence essential to the prosecutor's case must be proved beyond a reasonable doubt. If any such fact has not been proved beyond a reasonable doubt, you must not find the defendant guilty of the crime based on that circumstantial evidence [or find true a special allegation based on that circumstantial evidence].


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution substantially relies on circumstantial evidence to establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [duty exists where circumstantial evidence relied on to prove any element, including intent]; see People v. Boyd (1987) 43 Cal.3d 333, 351-52; People v. Heishman (1988) 45 Cal.3d 147, 167; CJER Mandatory Criminal Jury Instructions Handbook (1998) 2.4, 2.90, pp. 16, 75; see also People v. Butler (1980) 104 Cal.App.3d 868, 876-78 [discussing whether circumstantial evidence was substantially relied on or merely corroborative and finding it only corroborative].)

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Related Instructions

If intent is the only element proved by circumstantial evidence, then give instruction 301, Circumstantial Evidence: Intent. (People v. Marshall (1996) 13 Cal.4th 799, 849.)

AUTHORITY

Direct Evidence, Defined Evid. Code, 410.

Inference, Defined Evid. Code, 600(b).

Instructional Requirements:

* Difference Between Direct and Circumstantial Evidence People v. Lim Foon (1915) 29 Cal.App. 270, 274 [no sua sponte duty to instruct, but court approves definition].

* Between Two Reasonable Interpretations of Circumstantial Evidence, Accept the One That Points to Innocence People v. Merkouris (1956) 46 Cal.2d 540, 560-62 [error to refuse requested instruction on this point]; People v. Johnson (1958) 163 Cal.App.2d 58, 62 [sua sponte duty to instruct].

* Circumstantial Evidence Must Be Entirely Consistent With a Theory of Guilt and Inconsistent With Any Other Rational Conclusion People v. Bender (1945) 27 Cal.2d 164, 175 [sua sponte duty to instruct]; People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [same].

* Each Fact in a Chain of Circumstantial Evidence Must Be Proved People v. Watson (1956) 46 Cal.2d 818, 831 [error to refuse requested instruction on this point].

See generally People v. Boyd (1987) 43 Cal.3d 333, 351-52 [sua sponte duty to instruct on above principles when prosecutor's case rests substantially on circumstantial evidence].

RELATED ISSUES

Extrajudicial Admissions

Extrajudicial admissions, although hearsay, are not the type of indirect evidence requiring instruction on circumstantial evidence. (People v. Wiley (1976) 18 Cal.3d 162, 174-75.)

Corroborating Evidence

An instruction on evaluating circumstantial evidence is not required when the evidence is only incidental to and corroborative of direct evidence. (People v. Shea (1995) 39 Cal.App.4th 1257, 1270-71; People v. Jerman (1946) 29 Cal.2d 189, 197; see also People v. Wright (1990) 52 Cal.3d 367, 406 [no instruction required where circumstantial evidence only corroborates direct evidence]; People v. Williams (1984) 162 Cal.App.3d 869, 874-76 [no duty to instruct when circumstantial evidence used to corroborate accomplice's testimony; although corroborating evidence needed to substantiate direct

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evidence given by accomplice, it was not type of evidence requiring circumstantial evidence instruction].)

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306. All Available Evidence

Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.

BENCH NOTES

Instructional Duty

No authority imposes a duty to give an instruction on all available evidence sua sponte; however, it should be given on request. (See generally Pen. Code, 1093(f), 1127; People v. Pitts (1990) 223 Cal.App.3d 606, 880, 881.)

AUTHORITY

Instructional Requirements People v. Simms (1970) 10 Cal.App.3d 299, 313.

RELATED ISSUES

Willful Suppression of or Failure to Obtain Evidence

Willful suppression of evidence by the government constitutes a denial of a fair trial and of due process. (People v. Noisey (1968) 265 Cal.App.2d 543, 549-50.) Likewise, willful failure by investigating officers to obtain evidence that would clear a defendant would amount to a denial of due process of law. (Ibid.) However, failure to look for evidence is quite different from suppressing known evidence and "the mere fact that investigating officers did not pursue every possible means of investigation of crime does not, standing alone, constitute denial of due process or suppression of evidence." (Ibid.; see also People v. Tuthill (1947) 31 Cal.2d 92, 97-98 ["[t]here is no compulsion on the prosecution to call any particular witness or to make any particular tests so long as there is fairly presented to the court the material evidence bearing upon the charge for which the defendant is on trial."].)

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307. Proof Need Not Show Actual Date

The (information/indictment) in this case states that the crime occurred on [or about] ______ [insert alleged date]. The prosecutor is not required to prove that the crime took place exactly on that day but only that it happened on or reasonably close to that day.

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction that the prosecutor does not have to prove the exact time and day the crime was committed. This instruction should not be given (1) when the evidence demonstrates that the offense was committed at a specific time and place and the defendant has presented a defense of alibi or lack of opportunity and (2) when two similar offenses are charged in separate counts. (People v. Jennings (1991) 53 Cal.3d 334, 358-59; People v. Jones (1973) 9 Cal.3d 546, 557, overruled on different grounds by Hernandez v. Superior Court (1989) 49 Cal.3d 713; People v. Barney (1983) 143 Cal.App.3d 490, 497-98; People v. Gavin (1971) 21 Cal.App.3d 408, 415-16; People v. Deletto (1983) 147 Cal.App.3d 458, 474-75.)

AUTHORITY

Instructional Requirements Pen. Code, 955; People v. Jennings (1991) 53 Cal.3d 334, 358-59; People v. Jones (1973) 9 Cal.3d 546, 557; People v. Barney (1983) 143 Cal.App.3d 490, 497-98; People v. Gavin (1971) 21 Cal.App.3d 408, 415-16; People v. Deletto (1983) 147 Cal.App.3d 458, 474-75.

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315. Consciousness of Guilt: False Statements

If [the] defendant [______ [insert name of defendant]] made a false or misleading statement relating to the charged crime, knowing it was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of that crime. If you conclude that [the] defendant [______ [insert name of defendant]] made such a statement knowing it was false or intending to mislead, you may consider it [only] in determining (his/her) guilt. [You may not consider it in deciding any other defendant's guilt.]

Evidence that the defendant made such a statement cannot prove guilt by itself. If you conclude the defendant made the statement, it is up to you to decide its meaning and importance.

BENCH NOTES

Instructional Duty

People v. Atwood (1963) 223 Cal.App.2d 316, 333-34 held that the court had a sua sponte duty, under the circumstances of that case, to instruct on consciousness of guilt when there was evidence that the defendant intentionally made a false statement from which such an inference could be drawn. (See also People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-04 [approving instruction on this point]; 1998 CJER Mandatory Criminal Jury Instructions Handbook, 2.92, p. 76.)

This instruction should not be given unless it can be inferred that the defendant made the false statement for self-protection rather than to protect someone else. (People v. Rankin (1992) 9 Cal.App.4th 430, [error to instruct on false statements and consciousness of guilt where defendant lied to protect an accomplice]; see also People v. Blakeslee (1969) 2 Cal.App.3d 831, 839.)

AUTHORITY

Instructional Requirements People v. Atwood (1963) 223 Cal.App.2d 316, 333.

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COMMENTARY

The word "willfully" was not included in the description of the making of the false statement. Although one court suggested that the jury be explicitly instructed that the defendant must "willfully" make the false statement (People v. Louis (1984) 159 Cal.App.3d 156, 161-62), the California Supreme Court subsequently held that such language is not required. (People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9.)

RELATED ISSUES

Evidence The false nature of the defendant's statement may be shown by inconsistencies in the defendant's own testimony, his or her pretrial statements, or by any other prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498 [overruling line of cases that required falsity to be demonstrated only by defendant's own testimony or statements]; accord People v. Edwards (1992) 8 Cal.App.4th 1092, 1103; People v. Williams (1995) 33 Cal.App.4th 467, 478-79.)

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316. Consciousness of Guilt: Fabrication and Suppression of Evidence

Alternative A - suppression

If the defendant tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her) guilt. Evidence of such an attempt cannot prove guilt by itself. If you conclude the defendant made such an attempt, it is up to you to decide its meaning and importance.

Alternative B - fabrication

If the defendant tried to create false evidence or obtain false testimony, that conduct may show that (he/she) was aware of (his/her) guilt. Evidence of such an attempt cannot prove guilt by itself. If you conclude the defendant made such an attempt, it is up to you to decide its meaning and importance.

Alternative C - fabrication or suppression by a third party

If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of (his/her) guilt, but only if the defendant was present and knew about or authorized the other person's actions. Evidence of such conduct cannot prove guilt by itself. If you conclude such an attempt was made, it is up to you to decide the meaning and importance of this evidence.

BENCH NOTES

Instructional Duty

No authority imposes a duty to give this instruction sua sponte. However, People v. Atwood (1963) 223 Cal.App.2d 316, held that the court had a sua sponte duty, under the circumstances of that case, to instruct on consciousness of guilt based on defendant's false statements because they pertained to the vital question of whether defendant admitted his guilt. (Id. at pp. 333-34.)

AUTHORITY

Instructional Requirements People v. Atwood (1963) 223 Cal.App.2d 316

Suppression of Evidence Evid. Code, 413.

Fabrication of Evidence People v. Jackson (1996) 13 Cal.4th 1164, 1222; People v. Rodrigues (1994) 8 Cal.4th 1060, 1138.

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Fabrication or Suppression of Evidence by Third Party Evid. Code, 413; People v. Jackson (1996) 13 Cal.4th 1164, 1222; People v. Rodrigues (1994) 8 Cal.4th 1060, 1138.

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318. Defendant's Flight

If defendant fled [or tried to flee] (immediately after the crime was committed/after (he/she) was accused of committing the crime) that conduct may show that (he/she) was aware of (his/her) guilt. Evidence that the defendant fled [or tried to flee] cannot prove guilt by itself. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on flight whenever the prosecution relies on evidence of flight. (People v. Williams (1960) 179 Cal.App.2d 487, 491.) There is, however, no reciprocal duty to instruct on the significance of the absence of flight, even on request. (People v. Williams (1997) 55 Cal.App.4th 648, 651.)

If the defendant's flight did not occur immediately after the crime was committed, the trial court should give the second option in the paranthetical. (People v. Carrera (1989) 49 Cal.3d 291, 313 [flight from county jail]; People v. Farley (1996) 45 Cal.App.4th 1697, 1712 [where flight was from custody, the instructional language "immediately after the commission of a crime" was irrelevant but harmless].)

AUTHORITY

Instructional Requirements Pen. Code, 1127c; People v. Williams (1960) 179 Cal.App.2d 487, 491; People v. Bradford (1997) 14 Cal.4th 1005, 1054-55.

RELATED ISSUES

Flight, Meaning

Flight does not require a person to physically run from the scene or make an escape. What is required is acting with the purpose of avoiding observation or arrest. (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [defendant fled when he left victim's apartment after killing her, told the assistant manager, "I really got to get the hell out of here," returned to his apartment, packed his belongings, asked a former girlfriend who lived out of the area if he could stay with her, and repeatedly pleaded with his roommate to drive him out of town].)

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330. Limited Purpose Evidence in General

During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and no other.

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an admonition limiting consideration of evidence; however, it must be given on request. (Evid. Code, 355; People v. Simms (1970) 10 Cal.App.3d 299, 311.)

AUTHORITY

Instructional Requirements Evid. Code, 355; People v. Simms (1970) 10 Cal.App.3d 299, 311.

RELATED ISSUES

Timing of Instruction

The court has discretion to give limiting instructions at the time the evidence is admitted or at the close of evidence. (People v. Dennis (1998) 17 Cal.4th 468, 533-34 [giving limiting instruction regarding use of defendant's statements to psychiatrist at close of all evidence did not result in error].)

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332. Multiple Defendants: Limited Admissibility of Evidence

I instructed you during the trial that certain evidence was admissible only against [a] certain defendant[s]. You must not consider that evidence against (any/the) other defendant[s].

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction limiting evidence to one defendant; however, it must be given on request. (Evid. Code, 355; People v. Miranda (1987) 44 Cal.3d 57, 83 disapproved of on other grounds in People v. Marshall (1990) 50 Cal.3d 907.)

AUTHORITY

Instructional Requirements Evid. Code, 355.

RELATED ISSUES

See generally, the related issues section under instruction 330, Limited Purpose Evidence in General.

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333. Multiple Defendants: Limited Admissibility of Defendant's Statement


You heard evidence that defendant ______ [insert defendant's name] made a statement (out of court/before trial). You may consider that evidence only against (him/her), not against (any/the) other defendant[s].


BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on defendant's statements; however, it must be given on request. (Evid. Code, 355; People v. Simms (1970) 10 Cal.App.3d 299, 311.)

In most cases, the defendant will make the statement out of court, and the court should therefore instruct using that language. If the statement was made in a previous proceeding, the court should instruct that it was made "before trial." (See People v. Perry (1972) 7 Cal.3d 756, 787-88.)

If the statement was made in the course of a conspiracy, it may be admissible against all conspirators to prove the conspiracy. (See 1 Witkin, Cal. Evidence (3d ed. 1986) Statement Made During Conspiracy, 680, p. 664.)

AUTHORITY

Instructional Requirements Evid. Code, 355.

RELATED ISSUES

See generally, the related issues section under instruction 330, Limited Purpose Evidence in General.

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338. Other Perpetrator

The evidence shows that (another person/other persons) may have been involved in the commission of the crime[s] charged against the defendant. Your sole duty is to decide if the defendant on trial here committed the crime[s] charged. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether (that other person has/those other persons have) been or will be prosecuted.

[This instruction does not apply to the testimony of ______ [insert names of testifying coparticipants].]

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on co-participants; however, it must be given on request. (See People v. Sanders (1990) 221 Cal.App.3d 350, 359.)

If other alleged participants in the crime are testifying, this instruction should not be given or the bracketed portion should be given exempting the testimony of those witnesses. (People v. Carrera (1989) 49 Cal.3d 291, 312; People v. Sully (1991) 53 Cal.3d 1195, 1218; People v. Williams (1997) 16 Cal.4th 153, 226-27.)

AUTHORITY

Instructional Requirements People v. Farmer (1989) 47 Cal.3d 888, 918-19; People v. Sanders (1990) 221 Cal.App.3d 350, 359.

RELATED ISSUES

Jury Can Still Consider Evidence That Someone Else Was the Perpetrator

"The instruction does not tell the jury it cannot consider evidence that someone else was the perpetrator. It merely says the jury is not to speculate on whether someone else might or might not be prosecuted." (People v. Farmer (1989) 47 Cal.3d 888, 918-19.)

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339. Consent: Prior Sexual Intercourse

You have heard evidence that the alleged victim had consensual sexual intercourse with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide (whether the alleged victim consented to the charged act[s]/[and] whether the defendant reasonably and in good faith believed that the alleged victim consented to the charged act(s)). You may not consider this evidence for any other purpose.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this limiting admonition if the defendant is charged with rape or unlawful sexual intercourse or an attempt or assault with intent to commit either crime and evidence of prior sexual intercourse with the alleged victim has been admitted. (Pen. Code, 1127d.)

AUTHORITY

Instructional Requirements4Pen. Code, 1127d.

RELATED ISSUES

Admissibility of Sexual Conduct of Complaining Witness Evidence Code section 782 sets out the procedure for admitting evidence of the sexual conduct of the complaining witness.

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340. Miranda-Defective Statements

You have heard evidence that the defendant made a statement to a police officer before trial. [I am now referring to the statement allegedly given to ______ [insert name of officer or indicate time, place, or other information to identify the statement].]

If you conclude that the defendant made this statement, you may consider it only to help you decide whether to believe the defendant's trial testimony. You may not consider the statement for any other purpose.

[You should view an unrecorded oral statement cautiously.]

BENCH NOTES

Instructional Duty

There is a split of authority over whether the court has a sua sponte duty to give an instruction on Miranda-defective statements. (Compare People v. Duncan (1988) 204 Cal.App.3d 613, 619 with People v. Wyatt (1989) 215 Cal.App.3d 255, 258; People v. Baker (1990) 220 Cal.App.3d 574, cert. den. 498 U.S. 497.) The Center for Judicial Education and Research (CJER) notes the split and includes a cautionary instruction on this principle among those instructions to be given sua sponte . (1998 CJER Mandatory Criminal Jury Instructions Handbook, 2.216 at p. 96.) Those cases that do not impose a sua sponte duty recognize a duty to instruct on request. (People v. Wyatt, supra; People v. Torrez (1995) 31 Cal.App.4th 1084, 1090.) The committee suggests that the better practice is for the court to instruct sua sponte unless the defendant objects.

If the defendant made more than one statement, but not all of the statements are subject to the limiting admonition, specify the relevant statement or statements using the bracketed text in the first paragraph.

AUTHORITY

Instructional Requirements People v. May (1988) 44 Cal.3d 309; Harris v. New York (1971) 401 U.S. 222.

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341. Adoptive Admissions


If you conclude that someone made a statement outside of court that (accused the defendant of the crime [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true:

1. The statement was directed to the defendant or made in (his/her) presence.

2. The defendant heard and understood the statement.

3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true.

AND

4. The defendant could have denied it but did not.

If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.

If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose.

[You must not consider this evidence in determining the guilt of (the/any) other defendant[s].]


BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on the foundational requirements for adoptive admissions if such evidence is admitted. (People v. Vindiola (1979) 96 Cal.App.3d 370, 381, citing People v. Atwood (1963) 223 Cal.App.2d 316, 332-34; see also People v. Humphries (1986) 185 Cal.App.3d 1315, 1336.)

If the court instructs on adoptive admissions, the court also has a sua sponte duty to instruct on corpus delicti. (See instruction __, Corpus Delicti; see also People v. Jennings (1991) 53 Cal.3d 334, 364 [discussing corpus delicti rule in the case of an affirmative admission; by analogy the rule also should apply to adoptive admissions].)

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The limiting admonition in the last sentence of the instruction must be given on request when other co-defendants are on trial. (People v. Richards (1976) 17 Cal.3d 614, 618-19; see generally Evid. Code, 355.)

Do not give this instruction if the defendant's failure to reply was based on his or her invocation of the right to remain silent. (Griffin v. California (1965) 380 U.S. 609; People v. Cockrell (1965) 63 Cal.2d 659.)

AUTHORITY

Instructional Requirements People v. Atwood (1963) 223 Cal.App.2d 316, 332-33; People v. Vindiola (1979) 96 Cal.App.3d 370; People v. Humphries (1986) 185 Cal.App.3d 1315, 1336.

RELATED ISSUES

Defendant Intoxicated When Admission Made

"Declarations of a prisoner under the influence of intoxicants are not rendered inadmissible by reason of his drunkenness. That condition would go only to the weight of the evidence." (People v. MacCagnan (1954) 129 Cal.App.2d 100, 112 [instruction on adoptive admission proper despite defendant's intoxication when questioned concerning ownership of narcotic; jury may consider evasiveness of the answer since declarations under influence of intoxicants are not rendered inadmissible by reason of drunkenness].)

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348. Failure to Explain or Deny Adverse Testimony

If the defendant failed in (his/her) testimony to explain or deny evidence against (him/her), and if (he/she) could reasonably be expected to have done so based on what (he/she) knew, you may consider (his/her) failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to establish an inference of guilt. The prosecutor must still prove each element of the case beyond a reasonable doubt.

If you conclude the defendant did fail to explain or deny, it is up to you to decide the meaning and importance of that failure.

BENCH NOTES

Instructional Duty

No authority imposes a duty to give this instruction sua sponte. This instruction should only be given when the defendant testifies and the privilege against self-incrimination has not been successfully invoked. (People v. Mask (1986) 188 Cal.App.3d 450, 455; People v. Haynes (1983) 148 Cal.App.3d 1117, 1118.) Before an instruction on this principle may be given, the trial court must ascertain (1) if a question was asked that called for an explanation or denial of incriminating evidence, (2) if the defendant knew the facts necessary to answer the question, or if some circumstance precluded the defendant from knowing such facts, and (3) if the defendant failed to deny or explain the incriminating evidence when answering the question. (People v. Saddler (1979) 24 Cal.3d 671, 682-83 [instruction erroneously given because there was no evidence that defendant failed to deny or explain incriminating evidence]; People v. Marsh (1985) 175 Cal.App.3d 987, 994 [same]; People v. De Larco (1983) 142 Cal.App.3d 294, 309 [same]; see also People v. Marks (1988) 45 Cal.3d 1335, 1346.) Contradiction of the state's evidence is not by itself a failure to deny or explain. (People v. Marks, supra, 45 Cal.3d at p. 1346; People v. Peters (1982) 128 Cal.App.3d 75, 86.) Failure to recall is not an appropriate basis for this instruction. (People v. De Larco, supra, 142 Cal.App.3d at p. 309.)

One court has cautioned against giving this instruction unless both parties agree and there is a significant omission on the part of the defendant to explain or deny adverse evidence. (People v. Haynes, supra, 148 Cal.App.3d at pp. 1117-18.)

AUTHORITY

Instructional Requirements Evid. Code, 413.

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Cautionary Language People v. Saddler (1979) 24 Cal.3d 671, 683.

RELATED ISSUES

Bizarre or Implausible Answers

If the defendant's denial or explanation is bizarre or implausible, several courts have held that the question whether his or her claim of ignorance is reasonable should be given to the jury with an instruction regarding adverse inferences. (People v. Mask (1986) 188 Cal.App.3d 450, 455; People v. Roehler (1985) 167 Cal.App.3d 353, 392-93.) But see People v. Kondor: "[T]he test for giving the instruction [on failure to deny or explain] is not whether the defendant's testimony is believable. [The instruction] is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear." (People v. Kondor (1988) 200 Cal.App.3d 52, 57.)

Facts Beyond the Scope of Examination

If the defendant has limited his or her testimony to a specific factual issue, it is error for the prosecutor to comment, or the trial court to instruct, on his or her failure to explain or deny other evidence against him or her that is beyond the scope of this testimony. (People v. Tealer (1975) 48 Cal.App.3d 598, 604-07.)

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Series 400 - Witnesses

400. Single Witness' Testimony

405. Character of Defendant

406. Cross Examination of Character Witness

408. Exercise of Privilege by Witness

415. Eyewitness Identification

420. Testimony of Child 10 Years or Younger

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400. Single Witness's Testimony

[Except for the testimony of ______ [insert witness's name], which requires corroborating evidence or extra proof,] (the/The) testimony of a single witness can prove any fact in the case. Before relying on the testimony of a single witness to prove a fact, you should carefully review any other evidence on that point.

BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction on a single witness's testimony in every case where corroboration is not required. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-85.) Insert the bracketed language if the testimony of an accomplice or other witness requires corroboration. (People v. Chavez (1985) 39 Cal.3d 823, 831-32.)

The following constitutional provisions and statutes require evidence that corroborates a witness's testimony: Cal. Const., art. I, 20 [treason]; Pen. Code, 1111 [accomplice testimony]; 653f [solicitation of a felony]; 118 [perjury]; 1108 [abortion and seduction of a minor]; 1110 [obtaining property by false pretenses].

AUTHORITY

Instructional Requirements Evid. Code, 411; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.

Corroboration Required People v. Chavez (1985) 39 Cal.3d 823, 831-32.

RELATED ISSUES

Uncorroborated Testimony of Defendant

The cautionary admonition regarding a single witness's testimony applies with equal force to uncorroborated testimony by a defendant. (People v. Turner (1990) 50 Cal.3d 668, 696, fn. 14.)

Uncorroborated Testimony in Sex Offense Cases

In a prosecution for forcible rape, an instruction that the testimony of a single witness is sufficient may be given in conjunction with an instruction that there is no legal corroboration requirement in a sex offense case. Both instructions correctly state the law and because each focuses on a different legal point, there is no implication that the victim's testimony is more credible than the defendant's testimony. (People v. Gammage

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(1992) 2 Cal.4th 693, 701-02 [resolving split of authority on whether the two instructions can be given together].)

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405. Character of Defendant

You have heard character testimony that the defendant (is a ______ [insert character trait] person/or/has a good reputation for ______ [insert character trait] in the community where (he/she) lives or works).

You may take that testimony into consideration along with all the other evidence in deciding whether the prosecutor has proven the case beyond a reasonable doubt.

Evidence of the defendant's character for ______ [insert character trait] alone may create a reasonable doubt. If you decide such character evidence is true, it is up to you to determine its meaning and importance.

[If the defendant's character for certain traits has not been discussed among those who know (him/her), you may assume that (his/her) character for those traits is good.]

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on defendant's character; however, it must be given on request. (People v. Bell (1875) 49 Cal. 485, 489-90 [jury should be instructed that evidence of good reputation should be weighed as any other fact established and may be sufficient to create reasonable doubt of guilt]; People v. Jones (1954) 42 Cal.2d 219, 222 [character evidence may be sufficient to create reasonable doubt of guilt]; People v. Wilson (1913) 23 Cal.App. 513, 523-24 [court erred in failing to give requested instruction or any instruction on character evidence].)

AUTHORITY

Instructional Requirements People v. Bell (1875) 49 Cal. 485, 489-90; People v. Wilson (1913) 23 Cal.App. 513, 523-24; People v. Jones (1954) 42 Cal.2d 219, 222.

Admissibility Evid. Code, 1100-1102.

RELATED ISSUES

No Discussion of Character Is Evidence of Good Character

The fact that the defendant's character or reputation has not been discussed or questioned among those who know him or her is evidence of the defendant's good character and

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reputation. (People v. Castillo (1935) 5 Cal.App.2d 194, 198.) However, the defendant must have resided in the community for a sufficient period of time and become acquainted with the community in order for his or her character to have become known and for some sort of reputation to have been established. (See Evid. Code, 1324 [reputation may be shown in the community where defendant resides and in a group with which he or she habitually associates]; see also People v. Pauli (1922) 58 Cal.App. 594, 596 [witness's testimony about defendant's good reputation in community was inappropriate where defendant was a stranger in the community, working for a single employer for a few months, going about little, and forming no associations].)

Business Community

The community for purposes of reputation evidence may also be the defendant's business community and associates. (People v. Cobb (1955) 45 Cal.2d 158, 163.)

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406. Cross-Examination of Character Witness

The prosecutor was allowed to ask defendant's character witness(es) if (he/she/they) had heard that the defendant had engaged in certain conduct. These "have you heard" questions and their answers are not evidence that the defendant engaged in any such conduct. You may consider these questions and answers only to evaluate a character witness's testimony.

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on cross examination of character witnesses, however it must be given on request. (People v. Hempstead (1983) 148 Cal.App.3d 949, 954 [when cross-examination of character witness is permitted, a limiting admonition should be given] Evid. Code, 355.)

AUTHORITY

Instructional Requirements People v. Hempstead (1983) 148 Cal.App.3d 949, 954; People v. Eli (1967) 66 Cal.2d 63, 79.

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408. Exercise of Privilege by Witness

A witness may refuse to answer questions that call for privileged information. Under the law, ______ [insert name of witness] was justified in refusing to answer certain questions. You must not consider in any way (his/her) refusal[s] to answer, and you must not guess what (his/her) answer[s] would have been.


BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on the exercise of privilege by witnesses; however, it must be given on request. (Evid. Code, 913 subd. (b); see also People v. Mincey (1992) 2 Cal.4th 408, 440-441.)

Related Instructions

Defendant Has No Obligation to Testify, __.

AUTHORITY

Instructional Requirements Evid. Code, 913(b); People v. Mincey (1992) 2 Cal.4th 408, 440-41.

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415. Eyewitness Identification


You have heard eyewitness identification testimony. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.

In evaluating identification testimony, consider the following questions:

a. Did the witness know the defendant before the event?

b. How well could the witness see the perpetrator?

c. What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation[, and ______ [insert any other relevant circumstances]]?

d. How closely was the witness paying attention?

e. Was the witness under stress when he or she made the observation?

f. Did the witness give a description and how does that description compare to the defendant?

g. How much time passed between the event and the time[s] when the witness identified the defendant?

h. Was the witness asked to pick the perpetrator out of a group?

i. Did the witness ever fail to identify the defendant?

j. Did the witness ever change his or her mind about the identification?

k. How certain was the witness when he or she made an identification?

l. Are the witness and the defendant of different races?

m. Were there any other circumstances affecting the witness's ability to make an accurate identification?

[n. Was the witness able to identify other participants in the crime?]

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[o. Was the witness able to identify the defendant in a photographic or physical lineup?]

[p. ______ [insert other relevant factors raised by the evidence]]

If you are not convinced beyond a reasonable doubt, based on all the evidence, that it was the defendant who committed the crime, you must find (him/her) not guilty.


BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on eye-witness testimony. An instruction relating eyewitness identification to reasonable doubt, including any relevant "pinpoint" factors, must be given by the trial court on request "[w]hen an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability." (People v. Wright (1988) 45 Cal.3d 1126, 1143-44; People v. Fudge (1994) 7 Cal.4th 1075, 1110; People v. Palmer (1984) 154 Cal.App.3d 79, 89 [error to refuse defendant's requested instruction on eyewitness testimony].)

AUTHORITY

Factors People v. Wright (1988) 45 Cal.3d 1126, 1139, fn. 9, 1141; People v. West (1983) 139 Cal.App.3d 606, 609.

COMMENTARY

The court should give the unbracketed factors, if requested, in every case in which identity is disputed. The bracketed factors n, o, and p should be given if requested and factually appropriate. Factor p has been provided to include any factual circumstances relevant to eyewitness identification that have not been addressed in the preceding list of factors.Factor h addresses the situation where the identification is made by a "single person show-up." Compare to factor o, which specifically addresses photographic or physical lineups.In People v. Wright (1988) 45 Cal.3d 1126, 1139, the court suggested that the trial court should select factors from an approved list of eyewitness identification factors and then give counsel the opportunity to supplement with any additional relevant factors. (Id. at pp. 1126, 1143.) Additional "pinpoint" factors should be neutrally written, brief, and nonargumentative. (Ibid.; see also People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-03, overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.)

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RELATED ISSUES

Unreliability of Eyewitness Identification

An instruction to view eyewitness testimony with caution and that "mistaken identification is not uncommon" should not be given because it improperly singles out this testimony as suspect. (People v. Wright (1988) 45 Cal.3d 1126, 1153 [special cautionary instruction unnecessary as duplicative of required eyewitness "factors" instruction]; see also People v. Benson (1990) 52 Cal.3d 754, 805, fn. 12.) If a defendant wants to present information on the unreliability of eyewitness identifications under a particular set of circumstances, he or she must use means other than a jury instruction,such as expert testimony. (People v. Wright, supra, 45 Cal.3d at pp. 1126, 1153-54.)

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420. Testimony of Child 10 Years of Age or Younger

You have heard testimony from a child under the age of 10. As with any other witness, you must decide whether the child gave truthful and accurate testimony.

In evaluating the child's testimony, you should consider all of the factors surrounding that testimony, including the following:

1. How old is the child?

2. What is the level of the child's mental development?

3. Did the child understand the seriousness of giving testimony under oath?

4. Did the child understand the questions?

5. Does the child have a good memory?

6. [______ [insert other relevant factors raised by the evidence].]

Although a child witness may behave differently than an adult, that does not necessarily mean that a child is any more or less believable. You should not discount or distrust the testimony of a child just because of his or her age.

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on child witnesses; however, it must be given on request. (Pen. Code, 1127f.)

AUTHORITY

Instructional Requirements Pen. Code, 1127f.

RELATED ISSUES

Due Process/Equal Protection Challenges

"The instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom `traditional assumptions' may previously have biased the fact-finding process." (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-94 [instructing jury to make credibility determinations based on child's age, level of cognitive development, and other factors surrounding child's testimony does not inflate testimony of child witness and thereby lessen prosecutor's burden of proof and deny defendant due process and equal protection].)

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Series 500 - Aiding & Abetting, Inchoate And Accessorial Crimes

Theories of Culpability

500. Aiding and Abetting: General Principles

501. Aiding and Abetting: Intended Crimes

501. Aiding and Abetting: Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)

502. Aiding and Abetting: Natural and Probable Consequences Doctrine (Only Non-Target Offense Charged) Accessorial Crimes

520. Accessories

530. Solicitation

531. Solicitation of a Minor

Task Force Comments on this Series

The task force recognizes that theories of culpability and inchoate crimes present particularly challenging issues for the layperson because they are theoretically complex and difficult to apply factually. The same challenges exist in drafting clear, useful instructions.

With respect to the aiding and abetting instructions, the committee adopted three techniques to address this complexity. First, an introductory instruction, called "General Principles," has been provided which briefly explains liability under aiding and abetting and the natural and probable consequences doctrine. Second, the instructions themselves lead the jury step by step through the requirements for each doctrine. Third, the instructions provide spaces where the specific crimes alleged under each theory are to be inserted. By identifying the specific crimes at each point, the prosecution's theory of guilt is directly connected to the charged offense.

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500. Aiding and Abetting: General Principles

The prosecution is alleging that the defendant may be guilty based on a theory of aiding and abetting. Before I continue, I want to explain some general principles about aiding and abetting and theories of guilt in criminal law.

A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted another person, who committed the crime. Although the prosecutor must prove different requirements for these theories, a person is equally guilty of the crime whether he or she committed it personally or aided and abetted someone else who committed it.

[Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on aiding and abetting when the prosecutor relies on it as a theory of culpability. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.)

When the prosecution is relying on aiding and abetting, give this instruction before other instructions on aiding and abetting to introduce this theory of culpability to the jury. If the prosecution is also relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph. Depending on which theories are relied on by the prosecution, the court should then instruct as follows.

Intended Crimes (Target Crimes)

If the prosecution's theory is that the defendant intended to aid and abet the crime or crimes charged (target crimes), give instruction 501, Aiding & Abetting: Intended Crimes.

Natural & Probable Consequences Doctrine (Non-Target Crimes)

If the prosecution's theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime, instruction 502 or 503 should be given. If both the target and non-target crimes are charged, give instruction 502, Natural & Probable Consequences (Target and Non-Target Offenses.) In some cases, the prosecution may not charge the target crime but only the non-target crime. In that case,

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give instruction 503, Natural & Probable Consequences (Only Non-Target Offense Charged.)

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501. Aiding and Abetting: Intended Crimes

The defendant is charged [in Count ______ ] with ______ [insert charged offense[s]].

[If the prosecution's theory is that the defendant may also have been a direct perpetrator, insert the elements of the crimes here.]

You may [also] find the defendant guilty of ______ [insert offense] if (he/she) aided and abetted another person who committed that crime. I will call that other person the "perpetrator." You may find the defendant guilty under a theory of aiding and abetting only if the prosecutor has proven:

1. The perpetrator committed ______ [insert offense].

2. The defendant knew that the perpetrator intended to commit ______ [insert offense].

3. Before or during the crime, the defendant aided and abetted the perpetrator in committing ______ [insert offense].

AND

4. When the defendant acted, (he/she) intended to aid and abet the perpetrator's commission of the crime.

[The perpetrator committed ______ [insert offense] if: ______ [insert elements of offense substituting "perpetrator" for "defendant"].]

The defendant aided and abetted the perpetrator if he or she did or said something that aided, facilitated, promoted, encouraged or instigated the commission of the crime.

[The fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.]

[If you conclude that defendant was present at the scene of the crime or failed to prevent the crime you may consider that fact in determining whether the defendant was an aider and abettor. However, the mere presence at the scene of the crime or failure to prevent the crime does not by itself constitute aiding and abetting.]

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[Even a person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things. First, early enough to prevent the commission of the crime, he or she must notify all others concerned in the commission of the crime that he or she is withdrawing. Second, he or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on aiding and abetting when the prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35 Cal.3d 547, 560-61.)

If there is evidence that the defendant was merely present at the scene or only had knowledge that a crime was being committed, the court has a sua sponte duty to give the bracketed portion regarding presence. (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14; In re Michael T. (1978) 84 Cal.App.3d 907, 911.)

If there is evidence that the defendant withdrew from participation in the crime, the court must give the bracketed portion regarding withdrawal. (People v. Norton (1958) 161 Cal.App.2d 399, 403; People v. Ross (1979) 92 Cal.App.3d 391, 404-05.)

Framework for Instructions

Give instruction 500, Aiding and Abetting: General Principles, before this instruction. When the prosecution's theory is that defendant is guilty either as an aider and abettor or as the direct perpetrator, insert the elements of the crime after the first sentence. When the prosecution's only theory is that the defendant is guilty as an aider and abettor, insert the elements of the crime after "The perpetrator committed the crime," substituting "perpetrator" for "defendant." (See first bracketed paragraph.)

Related Instructions

If the prosecution charges non-target crimes under the Natural and Probable Consequences Doctrine, give instruction 502, Natural and Probable Consequences (All Crimes Charged) if both non-target and target crimes have been charged and instruction 503, Natural and Probable Consequences (Only Non-Target Crimes Charged) if only the non-target crimes have been charged.

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If there is an issue regarding how long a crime continues for purposes of aiding and abetting liability, see the specific instructions in each crime category on this principle. (For example, instruction __ Robbery: Complete for Purposes of Aiding and Abetting.)

AUTHORITY

Definition of Principals Pen. Code, 31.

Requirements for Aiding and Abetting People v. Beeman (1984) 35 Cal.3d 547, 560-561.

Presence or Knowledge Insufficient People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14; In re Michael T. (1978) 84 Cal.App.3d 907, 911.

Withdrawal People v. Norton (1958) 161 Cal.App.2d 399, 403; People v. Ross (1979) 92 Cal.App.3d 391, 404-405.

RELATED ISSUES

Accessory After the Fact

The prosecution must show that an aider and abettor intended to facilitate or encourage the target offense before or during its commission. If the defendant formed an intent to aid after the crime was completed, then he or she may be liable as an accessory after the fact. (People v. Cooper (1991) 53 Cal.3d 1158, 1160-61 [get-away driver, whose intent to aid was formed after asportation of property, was an accessory after the fact, not an aider and abettor]; People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1072-73; People v. Rodriguez (1986) 42 Cal.3d 730, 760-61.)

Factors Relevant to Aiding and Abetting

Factors relevant to determining whether a person is an aider and abettor include: presence at the scene of the crime, companionship, and conduct before or after the offense. (People v. Singleton (1987) 196 Cal.App.3d 488, 492, citing People v. Chagolla (1983) 144 Cal.App.3d 422, 429 People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

Felony Murder

To prove guilt of felony murder as an aider and abettor, the prosecutor must prove that the defendant formed the intent to aid and abet before the commission of the killing. (People v. Pulido (1997) 15 Cal.4th 713, 724; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1393-97; see instruction no. __, Felony-Murder: Aiding and Abetting.)

Perpetrator versus Aider and Abettor

For purposes of culpability the law does not distinguish between perpetrators and aiders and abettors; however, the required mental states that must be proved for each are different. One who engages in conduct that is an element of the charged crime is a

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perpetrator, not an aider and abettor of the crime. (People v. Cook (1998) 61 Cal.App.4th 1364, 1371.)

Presence Not Required

A person may aid and abet a crime without being physically present. ( People v. Bohmer (1975) 46 Cal.App.3d 185, 199; see also People v. Sarkis (1990) 222 Cal.App.3d 23, 27.) Nor does a person have to physically assist in the commission of the crime; a person may be guilty of aiding and abetting if he or she intends the crime to be committed and instigates or encourages the perpetrator to commit it. (People v. Booth (1996) 48 Cal.App.4th 1247, 1256.)

Principal Does Not Have to Be Convicted

Although the jury must find that the principal committed the crime aided and abetted, the fact that a principal has been acquitted of a crime or convicted of a lesser offense in a separate proceeding does not bar conviction of an aider and abettor. (People v. Wilkins (1994) 26 Cal.App.4th 1089, 1092-1094; People v. Summersville (1995) 34 Cal.App.4th 1062, 1066-1069; People v. Rose (1997) 56 Cal.App.4th 990.) A single Supreme Court case has created an exception to this principle and held that non-mutual collateral estoppel bars conviction of an aider and abettor when the principal was acquitted in a separate proceeding. (People v. Taylor (1974) 12 Cal.3d 686, 696-98.) In Taylor, the defendant was the `get-away driver' in a liquor store robbery in which one of the perpetrators inadvertently killed another during a gun battle inside the store. In a separate trial, the gunman was acquitted of the murder of his co-perpetrator because the jury did not find malice. The court held that collateral estoppel barred conviction of the aiding and abetting driver, reasoning that the policy considerations favoring application of collateral estoppel were served in the case. The court specifically limited its holding to the facts, emphasizing the clear identity of issues involved and the need to prevent inconsistent verdicts. (See also People v. Howard (1988) 44 Cal.3d 375, 411-14 [court rejected collateral estoppel argument and reiterated the limited nature of its holding in Taylor.)

Specific Intent Crimes

If a specific intent crime is aided and abetted, the aider and abettor must share the requisite specific intent with the perpetrator. "[A]n aider and abettor will `share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (citations omitted.) (People v. Beeman (1984) 35 Cal.3d 547, 560.) The perpetrator must have the requisite specific intent and the jury must be so instructed. (People v. Patterson (1989) 209 Cal.App.3d 610, [trial court erred in failing to instruct jury that perpetrator must have specific intent to kill]; People v. Torres (1990) 224 Cal.App.3d 763, 768-69.) And the jury must find that the aider and abettor shared the perpetrator's specific intent. (People v. Acero (1984) 161 Cal.App.3d

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217, 224 [to convict defendant of aiding and abetting and attempted murder, jury must find that he shared perpetrator's specific intent to kill].)

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502. Natural and Probable Consequences Doctrine

(Target and Non-Target Offenses Charged)

The defendant is charged [in Counts ______] with ______ [insert target offense] and ______ [insert non-target offense].

You must first decide whether the defendant is guilty of ______ [insert target offense]. If you find the defendant is guilty of this crime, you must then decide whether (he/she) is guilty of ______ [insert non-target offense].

Give instruction 501, Aiding and Abetting: Intended Crimes, omitting the first sentence and inserting elements of the target offense.

Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.

If you decide the defendant is guilty of ______ [insert target offense], then you must also decide whether (he/she) is guilty of ______ [insert non-target offense].

You may find the defendant guilty of ______ [insert non-target offense] only if the prosecutor has proven beyond a reasonable doubt that:

1. The defendant is guilty of ______ [insert target offense].

2. During the commission of the ______ [insert target offense], the crime of ______ [insert non-target offense] was committed.

3. The commission of the ______ [insert non-target offense] was a natural and probable consequence of the commission of the ______ [insert target offense].

The crime of ______ [insert non-target offense] was committed if: ______ [insert elements of non-target offense, substituting "perpetrator" for "defendant"].

You must decide whether under all of the circumstances, a reasonable person in the defendant's position would have or should have known that the charged crime was a natural and probable consequence of the act the defendant aided and abetted.

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BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on aiding and abetting when the prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35 Cal.3d 547, 560-61.) The court has a sua sponte duty to identify and instruct on any target offense relied on by the prosecution as a predicate offense when substantial evidence supports the theory. The court does not have to instruct on all potential target offenses supported by the evidence. (People v. Prettyman (1996) 14 Cal.4th 248, 267-68.)

The target offense is the crime that the parties intended to commit. The non-target is an additional unintended crime that occurs during the commission of the target. When the court instructs on the commission of the non-target offenses by the perpetrator, the court should begin with the numbered elements of the crime and replace the word "defendant" with the words "a perpetrator." For example, if burglary is charged as a non-target offense, the court would instruct:

1. A perpetrator entered a (building/locked vehicle/______); and

2. When (he/she) entered the (building/locked vehicle/______), (he/she) intended to commit a (theft/rape/assault/______ [insert other felony]) ...

Order of Instructions

Give instruction 500, Aiding and Abetting: General Principles before this instruction. This instruction should be used when the prosecution relies on the Natural and Probable Consequences Doctrine and charges both target and non-target crimes. If only non-target crimes are charged, give instruction 503.

Related Instructions

If there is an issue regarding when a crime is continuing for purposes of aiding and abetting, see the specific instruction in each offense category on this principle. (For example, instruction no. __ Robbery: Complete for Purposes of Aiding and Abetting)

AUTHORITY

Aiding and Abetting, defined People v. Beeman (1984) 35 Cal.3d 547, 560-61.

Natural and Probable Consequences, Reasonable Person Standard People v. Nguyen (1993) 21 Cal.App.4th 518, 531.

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COMMENTARY

In People v. Hammond (1986) 181 Cal.App.3d 463, 469, the court proposed that the jury be instructed that it must specifically determine whether the charged crimes were the "natural and probable consequences" of some other criminal act defendant knowingly and intentionally aided or encouraged. In People v Cox (1991) 53 Cal.3d 618, 668-69, the court held that the proposed Hammond instructions were only required on request. However, in People v. Prettyman (1996) 14 Cal.4th 248, 268, the court concluded that the trial court must sua sponte identify and describe for the jury any target offenses allegedly aided and abetted by the defendant. Prettyman essentially subsumes Hammond, requiring that the jury link the natural and probable consequences to the target offense. (See People v. Williams (1997) 16 Cal.4th 635, 673-675 [applying Prettyman instruction compels no different result than applying the Hammond/Cox instruction].) This instruction incorporates both the Hammond and Prettyman instructional requirements.

This instruction does not explicitly define the terms "natural" and "probable." No published case to date gives a clear definition of these terms nor holds that there is a sua sponte duty to define them. For further discussion of these terms, see People v. Prettyman (1996) 14 Cal.4th 248, 261; see also Id. at pp. 291-92 [dissent and concurring opinion by Justice Brown]; People v. Croy (1985) 41 Cal.3d 1, 12; People v. Kauffman (1907) 152 Cal. 331, 334; People v. Cooper (1991) 53 Cal.3d 1158, 1162; People v. Nguyen (1993) 21 Cal.App.4th 518, 530; People v. Woods (1992) 8 Cal.App.4th 1570, 1583; People v. Brigham (1989) 216 Cal.App.3d 1039, 1052-53.

RELATED ISSUES

See generally, the related issues under instruction 501, Aiding and Abetting: Intended Crimes.

Lesser Included Offenses

The court has a duty to instruct on lesser included offenses that could be the natural and probable consequence of the intended offense when the evidence raises a question whether the greater offense is a natural and probable consequence of the original, intended criminal act. (People v. Woods (1992) 8 Cal.App.4th 1570, 1586-88 [aider and abettor may be found guilty of second degree murder under doctrine of natural and probable consequences although the principal was convicted of first degree murder].)

Natural and Probable Consequences Does Not Apply to Felony Murder

Under Penal Code section 189, the natural and probable consequences doctrine does not apply to aiding and abetting a felony murder. A person who aids and abets an enumerated felony that results in a killing is guilty of first degree murder. (See Pen. Code, 189.) There is no requirement that the homicide be a natural and probable consequence of the enumerated felony. (People v. Dawson (1997) 60 Cal.App.4th 534, 543-46; People v.

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Escobar (1996) 48 Cal.App.4th 999, 1018-20; but see People v. Pulido (1997) 15 Cal.4th 713 [the person must aid and abet the felony before the victim is killed]; see instruction __, Felony-Murder: Aiding and Abetting.)

Specific Intent - Non-Target Crimes

Before an aider and abettor may be found guilty of a specific intent crime under the natural and probable consequences doctrine, the jury must first find that the perpetrator possessed the required specific intent. (People v. Patterson (1989) 209 Cal.App.3d 610, 614 [trial court erroneously failed to instruct the jury that they must find that the perpetrator had the specific intent to kill necessary for attempted murder before they could find the defendant guilty as an aider and abettor under the `natural and probable' consequences doctrine], disagreeing with People v. Hammond (1986) 181 Cal.App.3d 463 to the extent it held otherwise.) However, it is not necessary that the jury find that the aider and abettor had the specific intent; the jury must only determine that the specific intent crime was a natural and probable consequence of the original crime aided and abetted. (People v. Woods (1992) 8 Cal.App.4th 1570, 1586-87.)

Target and Non-Target Offense May Consist of Same Act

Although generally, non-target offenses charged under the natural and probable consequences doctrine will be different and typically more serious criminal acts than the target offense alleged, they may consist of the same act with differing mental states. (People v. Laster (1997) 52 Cal.App.4th 1450, 1463-66 [defendants were properly convicted of attempted murder as a natural and probable consequence of aiding and abetting the discharge of a firearm from a vehicle. Although both crimes consist of the same act, attempted murder requires a more culpable mental state].)

Target Offense Not Committed

The Supreme Court has left open the question whether a person may be liable under the natural and probable consequences doctrine for a non-target offense, if the target offense was not committed. (People v. Prettyman (1996) 14 Cal.4th 248, 262, fn. 4.)

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503. Natural and Probable Consequences

(Only Non-Target Offense Charged)

The defendant is charged [in Count] ______ with ______ [insert non-target offense].

Before you may decide whether the defendant is guilty of ______ [insert non-target offense], you must decide whether (he/she) is guilty of ______ [insert all alleged target offense[s]].

Give instruction 501, Aiding and Abetting: Intended Crimes, omitting the first sentence.

You may find the defendant committed ______ [insert non-target offenses] only if the prosecutor has proven beyond a reasonable doubt that:

1. The defendant is guilty of ______ [insert all alleged target offenses].

2. During the commission of the ______ [insert target offense], the crime of ______ [insert non-target offense] was committed.

The crime of ______ [insert non-target offense] was committed ______ if: [instruct on elements of the non-target offense, substituting "perpetrator" for "defendant"].

3. The commission of the ______ [insert non-target offense] was a natural and probable consequence of the commission of the ______ [insert all alleged target offenses].

You must decide whether under all of the circumstances, a reasonable person in the defendant's position would have or should have known that the charged crime was a natural and probable consequence of the act the defendant aided and abetted.

[The prosecution is alleging that the defendant originally intended to aid and abet either ______ [insert target offense] or ______ [insert alternative target offense]. The defendant is guilty of ______ [insert non-target offense] only if you decide that the defendant aided and abetted one of these crimes and that ______ [insert non-target offense] was the natural and probable result of one of these crimes.

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However, you do not need to agree about which of these two crimes the defendant aided and abetted.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on aiding and abetting when the prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35 Cal.3d 547, 560-61.) The court has a sua sponte duty to identify and instruct on any target offenses relied on by the prosecution as a predicate offense that are supported by the evidence. The court does not have to instruct on all potential target offenses supported by the evidence. (People v. Prettyman (1996) 14 Cal.4th 248, 267-68.)

The target offense is the crime the parties intended to commit. The non-target is an additional unintended crime that occurs during the commission of the target. When the court instructs on the commission of the non-target by the perpetrator, the court should begin with the numbered elements of the crime and substitute "defendant" with "perpetrator." For example, if murder is charged as a non-target offense, the court should instruct:

1. The perpetrator caused the death of another person.

AND

2. (He/She) caused the death by an act committed with malice aforethought.

Order of Instructions

Before this instruction, give instruction 500, Aiding and Abetting: General Principles. This instruction should be used when the prosecution relies on the Natural and Probable Consequences Doctrine and charges only non-target crimes. If both target and non-target crimes are charged, give instruction 501.

AUTHORITY

Aiding and Abetting, defined People v. Beeman (1984) 35 Cal.3d 547, 560-61.

Natural and Probable Consequences, Reasonable Person Standard People v. Nguyen (1993) 21 Cal.App.4th 518, 531.

Presence or Knowledge Insufficient People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14; In re Michael T. (1978) 84 Cal.App.3d 907, 911.

Withdrawal People v. Norton (1958) 161 Cal.App.2d 399, 403; People v. Ross (1979) 92 Cal.App.3d 391, 404-05.

No Unanimity Required People v. Prettyman (1996) 14 Cal.4th 248, 267-268.

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RELATED ISSUES

See generally, the related issues section under instructions 501, Aiding and Abetting, and 502, Aiding and Abetting: Natural and Probable Consequences.

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520. Accessories

The defendant is charged [in Count ______ ] with being an accessory to a felony.

You may find the defendant guilty of being an accessory to a felony only if the prosecutor has proven beyond a reasonable doubt that:

1. Another person, whom I will call the perpetrator, committed a felony.

2. The defendant knew that the perpetrator had committed a felony or that the perpetrator had been charged with or convicted of a felony.

3. After the felony had been committed, the defendant either harbored, concealed, or aided the perpetrator.

AND

4. When the defendant acted, (he/she) intended that the perpetrator avoid or escape arrest, trial, conviction, or punishment.

[The perpetrator committed the felony of ______ [insert felony] if: ______ [insert elements of felony, substituting "perpetrator" for "defendant"].]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. There is no sua sponte duty to instruct on the underlying felony unless it is unclear that a felony occurred. However, the defendant is entitled to such an instruction on request. (People v. Shields (1990) 222 Cal.App.3d 1, 4-5.)

AUTHORITY

Elements Pen. Code, 32; People v. Duty (1969) 269 Cal.App.2d 97, 100-01.

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COMMENTARY

There is no authority defining "harbor." The committee therefore kept "harbor" in the instruction. Black's Law Dictionary defines harbor as "[t]he act of affording lodging, shelter, or refuge to a person, esp. a criminal or illegal alien." (7th ed., 1999, at p. 721.) The court may wish to give an additional definition depending on the facts of the case.

RELATED ISSUES

Accessory and Principal to the Same Crime

There is a split of authority on whether a person may ever be guilty as an accessory and a principal to the same crime. Early case law held that it was not possible to be convicted of both because either logic or policy prohibited it. (People v. Prado (1977) 67 Cal.App.3d 267, 271-73; People v. Francis (1982) 129 Cal.App.3d 241, 246-53.) However, a later case disputed both of these cases and held "that there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime." (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324, disapproved on other grounds in People v. Prettyman (1996) 14 Cal.4th 248; People v. Riley (1993) 20 Cal.App.4th 1808, 1816; but see People v. Nguyen (1993) 21 Cal.App.4th 518, 536 [suggesting in dicta that a person guilty as a principal can never be guilty as an accessory].)

Awareness of the Commission of Other Crimes Insufficient to Establish Guilt as an Accessory

Awareness that a co-perpetrator has committed other crimes is not enough to find a person guilty as an accessory to those crimes unless there is evidence that the person intentionally did something to help the co-perpetrator avoid or escape arrest, trial, conviction or punishment for those offenses. (People v. Nguyen (1993) 21 Cal.App.4th 518, 537 [defendants' convictions as accessories to sexual assaults committed by coperpetrators in the course of a robbery reversed; no evidence existed that defendants did anything to help co-perpetrators escape detection].)

Passive Nondisclosure

Although a person is not guilty of being an accessory if he or she fails or refuses to give incriminating information about a third party to the police, providing a false alibi for that person violates the accessory statute. (People v. Duty (1969) 269 Cal.App.2d 97, 103-04.)

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530. Solicitation: Elements

The defendant is charged [in Count __ ] with soliciting the crime of ______ [insert target offense].

You may find the defendant guilty of solicitation only if the prosecutor has proven beyond a reasonable doubt that:

1. The defendant asked [or ______ [insert other synonyms for solicit as appropriate]] another person to commit [or join in the commission of] the crime of ______ [insert target offense].

AND

2. The defendant intended that the crime of ______ [insert target offense] be committed.

The defendant intended that the person commit ______ if (he/she) intended that:

[Insert the elements of the crime substituting "person" for "defendant" and changing past tense to present tense.]

Alternative A - Corroboration

The crime of solicitation must be proven by the testimony of one witness and20 corroborating evidence.

Alternative B - Corroboration

The crime of solicitation must be proven by the testimony of two witnesses or by the testimony of one witness and corroborating evidence.

Corroborating evidence is evidence that (1) tends to connect the defendant with the commission of the crime and (2) is independent of the witness who testified about the fact of the solicitation. Corroborating evidence need not establish each element of the crime or prove guilt by itself. Corroborating evidence may include the defendant's acts, statements, or conduct, or any other circumstance that tends to connect (him/her) to the crime.

[A person is guilty of solicitation even if the crime solicited is not completed or even started. The person solicited does not have to agree to commit the crime.] [If you find the defendant guilty of solicitation, you must decide how many crimes (he/she) solicited. When deciding this question, consider the following factors:

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1. Were the crimes solicited part of a plan with a single objective or motive or did each crime solicited have a different objective or motive?

2. Were the crimes solicited to be committed at the same time?

3. Were the crimes solicited to be committed in the same place?

4. Were the crimes solicited to be committed in the same way?

5. Was the payment for the crimes solicited one amount or different amounts for each crime solicited?

Consider all of these factors when deciding whether the defendant's alleged acts were a single crime or ______ [insert number of solicitations alleged by prosecution] separate crimes of solicitation.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. Although "ask" has been approved as an accurate definition of solicit (People v. Gordon (1975) 47 Cal.App.3d 465, 472), a blank has also been provided in element one to permit substituting other words for "solicit." Other approved language includes: to entreat, implore, importune, to make petition to, to plead for, to try to obtain, to request, or to offer or invite another to commit a crime. (People v. Phillips (1945) 70 Cal.App.2d 449, 453; People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494; Laurel v. Superior Court for Los Angeles County (1967) 255 Cal.App.2d 292, 298.)

Penal Code section 653f lists those crimes that may be the target of a solicitation. If the target crime is listed in subdivision (a) or (b) of that section, insert the bracketed portion "[or join in the commission of]." If the target crime is listed in subdivision (c), (d), or (e), of the section, omit that bracketed portion.

Insert the elements of the target crime in the space provided. (See People v. Baskins (1946) 72 Cal.App.2d 728, 732.) If the crime is solicitation to commit murder, do not instruct on implied malice murder. (People v. Bottger (1983) 142 Cal.App.3d 974, 980- 81.)

When instructing on the corroboration requirements, if the target crime is listed in subdivision (d) or (e) of section 653f, give Alternative A. If the target crime is listed in subdivision (a), (b), or (c) of section 653f, give Alternative B.

Authority is divided on whether the judge or jury is to determine the number of solicitations where multiple crimes were solicited by the defendant. The bracketed portion at the end of the instruction should be given concerning this issue if multiple

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solicitations have been charged and the trial court determines that this is a question for the jury. (Compare People v. Davis (1989) 211 Cal.App.3d 317, 322-23 with People v. Morocco (1987) 191 Cal.App.3d 1449, 1454.)

AUTHORITY

Elements Pen. Code, 653f.

Solicitation, Defined People v. Gordon (1975) 47 Cal.App.3d 465, 472; People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494.

RELATED ISSUES

Crime Committed Outside of California

The solicitation of a person in California to commit a felony outside the state constitutes solicitation. (People v. Burt (1955) 45 Cal.2d 311, 314.)

Solicitation of Murder

When defining the crime of murder, in the case of a solicitation of murder, the trial court must not instruct on implied malice as an element of murder. Because the "crime of solicitation to commit murder occurs when the solicitor purposely seeks to have someone killed and tries to engage someone to do the killing," the person must have express malice to be guilty of the solicitation. (People v. Bottger (1983) 142 Cal.App.3d 974, 981.) An instruction on murder that includes implied malice as an element has the potential of confusing the jury. (Ibid.)

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531. Solicitation of a Minor

The defendant is charged [in Count __ ] with soliciting a minor to commit the crime1 of ______ [insert target offense].

You may find the defendant guilty of this crime only if the prosecutor has proven beyond a reasonable doubt that:

1. The defendant voluntarily asked, encouraged, [induced], [or] [intimidated] a minor to commit the crime of ______ [insert target offense].

AND

2. (He/She) intended that the minor commit the crime of ______ [insert target offense].

[3. At the time of the offense, the minor was 16 or 17 years old, and the defendant was at least 5 years older than the minor.]

The defendant intended that the person commit ______ if (he/she) intended that:

[Insert the elements of the crime substituting "person" for "defendant" and changing past tense to present tense.]

A minor is a person under the age of 18.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. Penal Code section 653j lists those offenses that may be the target of a solicitation of a minor.

If the minor is 16 or 17 years old, the jury must find that the defendant is at least 5 years older and the court must instruct sua sponte on bracketed element 3. (Pen. Code, 653j (a).)

AUTHORITY

Elements Pen. Code, 653j.

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Series 600 - Defenses

600. Alibi

610. Duress or Threats

615. Necessity

616. Necessity: Escape from Prison or County Jail

620. Accident and Misfortune

640. Unconsciousness

650. Voluntary Intoxication

660. Mistake of Fact

661. Mistake of Law

680. Statute of Limitations

690. Insanity: Determination, Effect of Verdict

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600. Alibi

The defendant is not guilty of ______ [insert crime] if (he/she) was not present when the crime was committed.

If you have a reasonable doubt that the defendant was present when the crime[s] (was/were) committed, you must find (him/her) not guilty.

[However, if the evidence establishes beyond a reasonable doubt that the defendant (aided and abetted the commission of/was a co-conspirator in the commission of) the crime [of______ [insert crime]], (his/her) presence is not required.]

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to instruct on alibi. (People v. Freeman (1978) 22 Cal.3d 434, 437-38; People v. Alcala (1992) 4 Cal.4th 742, 803-04.) The court must give this instruction on request when evidence of alibi has been introduced. (People v. Whitson (1944) 25 Cal.2d 593, 603 [no sua sponte duty even if substantial evidence has been introduced by the defense]; People v. Freeman (1978) 22 Cal.3d 434, 437-38.)

The defendant is not entitled to an instruction on alibi if the prosecution does not rely on the defendant's presence at the commission of the crime to establish culpability. (People v. Manson (1976) 61 Cal.App.3d 102, 211 [in prosecution for conspiracy and murder, defendant was not entitled to a jury instruction on alibi, where the prosecution never contended he was present at the time of the actual commission of any homicide and his presence was not a requirement for culpability].) However, if the prosecution's theory is that the defendant was either at the scene or alternatively, aided and abetted or conspired, without being present, the last bracketed paragraph should be given. (People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28. If this paragraph is given, the court has a sua sponte duty to instruct on aiding and abetting. (Ibid. [court properly instructed that alibi was not a defense in an aiding and abetting case, but failed to define aiding and abetting].)

AUTHORITY

Burden of Proof In re Corey (1964) 230 Cal.App.2d 813, 828.

Alibi: Aiding and Abetting People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28.

RELATED ISSUES

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Scrutinizing Alibi Evidence

Alibi evidence need only raise a reasonable doubt that the defendant was not present at the scene of the crime. It is therefore error to instruct the jury (1) that an alibi must be proved by a preponderance of the evidence, (2) that alibi evidence must convince the jury of the defendant's innocence, (3) that the jury must give less credit to the testimony of alibi witnesses, or (4) that the jury must give more careful scrutiny or less weight to alibi evidence than to other evidence. (People v. Costello (1943) 21 Cal.2d 760, 763.)

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610. Duress or Threats

The defendant is not guilty of ______ [insert crime] if (he/she) acted under duress.

The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/another person's) life would be in immediate danger if (he/she) refused a demand or request to commit the crime. The demand or request may have been express or implied.

The defendant's belief that (he/she/another person) was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed.

The prosecutor must prove beyond a reasonable doubt that the defendant did not commit the crime because of duress. If the prosecutor fails to do so, you must find the defendant not guilty.

[A threat of future harm is not sufficient; the danger must have been immediate.]

[This defense does not apply to the crime of ______ [insert crime(s) punishable by death].]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on a defense when the defendant is relying on this defense, or if there is substantial evidence supporting the defense and it is not inconsistent with the defendant's theory of the case. (See People v. Breverman (1998) 19 Cal.4th 142, 156 [addressing court's sua sponte instructional duties on defenses and lesser included offenses generally]; People v. Sedeno (1974) 10 Cal.3d 703, 716-17, overruled by Breverman, supra, on a different point; see also People v. Subielski (1985) 169 Cal.App.3d 563, 566-67 [no sua sponte duty because evidence did not support complete duress].)

As provided by statute, duress is not a defense to crimes punishable by death. (Pen. Code, 26(6).) If such a crime is charged, the court should instruct, using the last bracketed paragraph, that the defense is not applicable to that count.

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Related Instructions

The defense of duress applies when the threat of danger is immediate and accompanied by a demand, either direct or implied, to commit the crime. (People v. Heath (1989) 207 Cal.App.3d 892, 899-901; People v. Steele (1988) 206 Cal.App.3d 703, 706.) If the threat is of future harm or there is no implicit or explicit demand that the defendant commit the crime, the evidence may support instructing on the defense of necessity. (See instruction 615, Necessity.)

AUTHORITY

Instructional Requirements Pen. Code, 26(6).

Burden of Proof People v. Graham (1976) 57 Cal.App.3d 238, 240.

RELATED ISSUES

Great Bodily Harm

Penal Code section 26(6) discusses life-endangering threats and several older cases have outlined the defense of duress in the literal language of the statute. However, some cases have concluded that fear of great bodily harm is sufficient to raise this defense. (Compare People v. Hart (1950) 98 Cal.App.2d 514, 516 and People v. Lindstrom (1932) 128 Cal.App. 111, 116 with People v. Otis (1959) 174 Cal.App.2d 119, 124; see also 1 Witkin, Cal. Criminal Law (2d ed. 1988) Fear of Bodily Harm, 235, p. 271 [discussing this split]; but see People v. Subielski (1985) 169 Cal.App.3d 563, 566-67 [court rejects defense of duress because evidence showed defendant feared only a beating].) It is clear, however, that threats of great bodily harm are sufficient in the context of necessity. (People v. Lovercamp (1974) 43 Cal.App.3d 823, 831; People v. Pena (1983) 149 Cal.App.3d Supp. 14, 27.)

Third Person Threatened

In People v. Pena (1983) 149 Cal.App.3d Supp. 14, 21-25, the court held that the defenses of necessity and duress may be based on threats of harm to a third party. Although Pena is regarded as a necessity case, its discussion of this point was based on out-of-state and secondary authority involving the defense of duress. (See People v. Heath (1989) 207 Cal.App.3d 892, 898 [acknowledging that though Pena uses the terms necessity and duress interchangeably, it is really concerned with the defense of necessity].) No other California cases discussing threats made to a third party and duress were found. (See also 1 Witkin, Cal. Criminal Law (2d ed. 1988) Threat of Harm to Another, 236, pp. 271-72 [discussing Pena on this point].)

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615. Necessity

The defendant is not guilty of ______ [insert crime] if (he/she) acted because of legal necessity. To establish this defense, the defendant must prove that it is more likely than not that:

1. (He/She) acted to prevent a harm or evil to (himself/herself/another person.) The harm or evil must have been significant and physical.

2. (He/She) had no adequate alternative.

3. The potential for harm from the defendant's acts was not out of proportion to the harm or evil with which (he/she/another person) was threatened.

4. When the defendant acted, (he/she) actually believed that the act was1 necessary to prevent the threatened harm or evil.

5. A reasonable person would also have believed that the act was necessary under the circumstances.

AND

6. The defendant did not substantially contribute to the need to act.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on necessity when there is sufficient evidence supporting each of the factors establishing the defense. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [no duty to instruct sua sponte where evidence did not, as a matter of law, support this defense]; see In re Eichorn (1998) 69 Cal.App.4th 382, 389 [defendant requested instruction on necessity and court, citing Pepper, supra, held that "an instruction on necessity was required," where sufficient evidence established the defense].)

Related Instructions

If the threatened harm was immediate and accompanied by a demand to commit the crime, the defense of duress may apply. (See instruction, 610, Duress or Threats.)

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AUTHORITY

Instructional Requirements People v. Pena (1983) 149 Cal.App.3d Supp. 14; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035; People v. Kearns (1997) 55 Cal.App.4th 1128, 1135-36.

Burden of Proof People v. Waters (1985) 163 Cal.App.3d 935, 938; People v. Condley (1977) 69 Cal.App.3d 999, 1008.

RELATED ISSUES

Abortion Protests

The defense of necessity is not available to one who attempts to interfere with another person's exercise of a constitutional right (e.g., demonstrators at an abortion clinic). (People v. Garziano (1991) 230 Cal.App.3d 241, 244.)

Economic Necessity

Necessity caused by economic factors is valid under the doctrine. A homeless man was entitled to an instruction on necessity as a defense to violating an ordinance prohibiting sleeping in park areas. Lack of sleep is arguably a significant evil and his lack of economic resources prevented a legal alternative to sleeping outside. (In re Eichorn (1998) 69 Cal.App.4th 382, 389-91.)

Medical Necessity

There is a common law and statutory defense of medical necessity. The common law defense contains the same requirements as the general necessity defense. (See People v. Tribbet (1997) 56 Cal.App.4th 1532, 1538.) The statutory defense relates specifically to the use of marijuana and is based on Health and Safety Code section 11362.5, the "Compassionate Use Act."

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616. Necessity: Escape from Prison or County Jail

The defendant is not guilty of (escape/attempted escape) from (state prison/county jail) if (he/she) acted because of legal necessity. To establish this defense, the defendant must prove it is more likely than not that:

1. The defendant faced a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future.

2. (He/She) had no opportunity to complain to the authorities [or there was such a history of official inaction that a reasonable person in the same circumstances would have believed that a complaint would have been useless].

3. The defendant had no opportunity to obtain protection from a court.

4. (He/She) did not use force or violence against a (prison/jail) employee or another innocent person in the (escape/attempted escape).

AND

Alternative A - report to authorities

5A. (He/She) reported to the appropriate authorities as soon as (he/she) was safe from the immediate threat.

Alternative B - intent to report

5B. (He/She) intended to report to the appropriate authorities as soon as (he/she) was safe from the immediate threat, but was apprehended first.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on necessity when there is sufficient evidence supporting each of the factors establishing the defense. (People v. Lovercamp (1974) 43 Cal.App.3d 823, 831-32.)

Related Instructions

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When necessity is raised as a defense to crimes other than escape, the court should give instruction 615, Necessity.

AUTHORITY

Instructional Requirements People v. Lovercamp (1974) 43 Cal.App.3d 823, 831-32.

Burden of Proof People v. Waters (1985) 163 Cal.App.3d 935, 938; People v. Condley (1977) 69 Cal.App.3d 999, 1013.

RELATED ISSUES

See generally, the related issues section under instruction 615, Necessity.

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620. Accident and Misfortune

Intent Crimes

The defendant is not guilty of ______ [insert crime] if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead through accident or misfortune. You may not find the defendant guilty of ______ [insert crime] unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.

Criminal Negligence Crimes

The defendant is not guilty of ______ [insert crime] if (he/she) acted [or failed to act] through accident or misfortune without criminal negligence. You may not find the defendant guilty of ______ [insert crime] unless you are convinced beyond a reasonable doubt that (he/she) acted with criminal negligence.

BENCH NOTES

Instructional Duty

The court must give this instruction on request when evidence of accident or misfortune is introduced and the defendant requests an instruction on this defense. (People v. Acosta (1955) 45 Cal.2d 538, 544.)

When instructing on the defense of accident and misfortune, only the mental state relevant to the crime charged should be included in the instruction. (People v. Lara (1996) 44 Cal.App.4th 102, 109 [trial court erred in instructing on criminal negligence in battery case because battery is a general intent crime].) The first paragraph is given if the defense is raised to a general or specific intent crime. The second paragraph is given if the defense is raised to a crime that is committed by criminal negligence. In either case, the court should insert the specific crime in the space provided. If both intent and negligence crimes are charged, instruct with both paragraphs and insert the crimes in their respective spaces.

Related Instructions

If murder is charged, see instruction 715, Excusable Homicide: Accident and Misfortune.

AUTHORITY

Instructional Requirements Pen. Code, 26(5), 195.

Burden of Proof People v. Black (1951) 103 Cal.App.2d 69, 79; People v. Frye (1992) 7 Cal.App.4th 1148, 1154-55.

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Criminal Negligence People v. Lara (1996) 44 Cal.App.4th 102, 109.

RELATED ISSUES

Misfortune Defined

"`Misfortune' when applied to a criminal act is analogous [to] the word `misadventure' and bears the connotation of accident while doing a lawful act." (People v. Gorgol (1953) 122 Cal.App.2d 281, 308.)

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640. Unconsciousness

The defendant is not guilty of ______ [insert crime] if (he/she) acted while legally unconscious. Under the law, someone is unconscious when he or she is not aware of his or her actions. [Someone may be unconscious even though able to move.]

Unconsciousness may be caused by a blackout, an epileptic seizure, involuntary intoxication, somnambulism (sleepwalking), or some other similar condition.

The prosecutor must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. Unless you are convinced beyond a reasonable doubt, that the defendant was conscious when (he/she) acted, you must find him/her not guilty.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on unconsciousness if the defendant is relying on this defense or if there is substantial evidence supporting the defense and it is not inconsistent with the defendant's theory of the case. (See People v. Breverman (1998) 19 Cal.4th 142, 156 [addressing court's sua sponte instructional duties on defenses and lesser included offenses generally];People v. Sedeno (1974) 10 Cal.3d 703, 716-17 [duty to instruct on unconsciousness], overruled by Breverman, supra, on different grounds.)

Because there is a presumption that a person who acts conscious is conscious (People v. Hardy (1948) 33 Cal.2d 52, 63-64), the defendant must produce sufficient evidence raising a reasonable doubt that he or she was conscious before an instruction on unconsciousness may be given. (Ibid.; People v. Kitt (1978) 83 Cal.App.3d 834, 842 [presumption of consciousness goes to the defendant's burden of producing evidence].)

AUTHORITY

Instructional Requirements Pen. Code, 26(4); People v. Stewart (1976) 16 Cal.3d 133, 140.

Burden of Proof Pen. Code, 607; People v. Hardy (1948) 33 Cal.2d 52, 64; People v. Cruz (1978) 83 Cal.App.3d 308, 330-31.

Unconsciousness Defined People v. Newton (1970) 8 Cal.App.3d 359, 376; People v. Heffington (1973) 32 Cal.App.3d 1, 9.

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Examples of Unconscious States:

* Somnambulism or Delirium People v. Methever (1901) 132 Cal. 326, 329, overruled on other grounds in People v. Gorshen (1953) 51 Cal.2d 716.

* Blackouts People v. Cox (1944) 67 Cal.App.2d 166, 172.

* Epileptic Seizures People v. Freeman (1943) 61 Cal.App.2d 110, 115-16.

* Involuntary Intoxication People v. Heffington (1973) 32 Cal.App.3d 1, 8.

COMMENTARY

The committee did not include an instruction on the presumption of consciousness. There is a judicially created presumption that a person who acts conscious is conscious. (People v. Hardy (1948) 33 Cal.2d 52, 63-64.) Although an instruction on this presumption has been approved, it has been highly criticized. (See People v. Kitt (1978) 83 Cal.App.3d 834, 842-43 [acknowledging instruction and suggesting modification]; People v. Cruz (1978) 83 Cal.App.3d 308, 332 [criticizing CALJIC instruction for failing to adequately explain the presumption].)

The effect of this presumption is to place on the defendant a burden of producing evidence to dispel the presumption. (Cruz, supra, at pp. 330-31; Kitt, supra, at p. 842; and see People v. Babbitt (1988) 45 Cal.3d 660, 689-96 [an instruction on this presumption "did little more than guide the jury as to how to evaluate evidence bearing on the defendant's consciousness and apply it to the issue."].) However, if the defendant produces enough evidence to warrant an instruction on unconsciousness, the rebuttable presumption of consciousness has been dispelled and no instruction on its effect is necessary. The committee, therefore, concluded that no instruction on the presumption of consciousness was needed.

RELATED ISSUES

Inability to Remember

Generally, a defendant's inability to remember or his hazy recollection does not supply an evidentiary foundation for a jury instruction on unconsciousness. (People v. Heffington (1973) 32 Cal.App.3d 1, 10); People v. Sameniego (1931) 118 Cal. App. 165, 173 ["The inability of a defendant ... to remember ... is of such common occurrence and so naturally accountable for upon the normal defects of memory, or, what is more likely, the intentional denial of recollection, as to raise not even a suspicion of declarations having been made while in an unconscious condition."].) In People v. Coston (1947) 82 Cal.App.2d 23, 40-41, the court stated that forgetfulness may be a factor in unconsciousness; however, "there must be something more than [the defendant's] mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of that act."

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Two cases have held that a defendant's inability to remember warrants an instruction on unconsciousness. (People v. Bridgehouse (1956) 47 Cal.2d 406 and People v. Wilson (1967) 66 Cal.2d 749, 761-62.) Both cases were discussed in People v. Heffington (1973) 32 Cal.App.3d 1, but the court declined to hold that Bridgehouse and Wilson announced an "ineluctable rule of law" that "a defendant's inability to remember or his `hazy' recollection supplies an evidentiary foundation for a jury instruction on unconsciousness." (Id. at p. 10.) The court stated that, "[b]oth [cases] were individualized decisions in which the court examined the record and found evidence, no matter how incredible, warranting the instruction." (Ibid.)

Intoxication - Involuntary versus Voluntary

Unconsciousness due to involuntary intoxication is a complete defense to a criminal charge under Penal Code section 26 subdivision (4). (People v. Heffington (1973) 32 Cal.App.3d 1, 8.) Unconsciousness due to voluntary intoxication is governed by Penal Code section 22, rather than section 26, and is not a defense to a general intent crime. (People v. Chaffey (1994) 25 Cal.App.4th 852, 855.)

Mental Condition

A number of authorities have stated that a decisional conflict exists in California over whether an unsound mental condition can form the basis of a defense of unconsciousness. (See People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, 23; 1 Witkin Cal. Criminal Law (2d ed. 1988) Unconsciousness, 214, pp. 246-48 [noting the split and concluding that the more recent cases permit the defense for defendants of unsound mind]; Annot., Automatism or Unconsciousness as a Defense or Criminal Charge (1984) 27 A.L.R.4th 1067, 3(b) fn. 7.)

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650. Voluntary Intoxication

The defendant is not guilty of ______ [insert crime] if he did not (intend to ______/know ______ / ______ [insert specific mental state]] because (he/she) was voluntarily intoxicated when (he/she) acted.

[Intoxication is voluntary if the defendant willingly used any intoxicating drink, drug, or other substance knowing that it could produce an intoxicating effect.]

If you have a reasonable doubt that the defendant had the required intent [or mental state] when (he/she) acted, you must find (him/her) not guilty of ______ [insert crime].

[Voluntary intoxication is not a defense to ______ [insert charged general intent crimes].]

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to instruct on voluntary intoxication; however, the trial court must give this instruction on request. (People v. Ricardi (1992) 9 Cal.App.4th 1427, 1432; People v. Castillo (1997) 16 Cal.4th 1009, 1014; People v. Saille (1991) 54 Cal.3d 1103, 1119.) Although voluntary intoxication is not an affirmative defense to a crime, the jury may consider evidence of voluntary intoxication and its effect on the defendant's ability to form specific mental states. (Pen. Code, 22; People v. Reyes (1997) 52 Cal.App.4th 975, 982-86 [relevant to knowledge element in receiving stolen property]; People v. Mendoza (1998) 18 Cal.4th 1114, 1131-34 [relevant to mental state in aiding and abetting].)

Voluntary intoxication may not be considered for general intent crimes. (People v. Menodza (1998) 18 Cal.4th 1114, 1127-28; see also People v. Hood (1969) 1 Cal.3d 444, 451 [applying specific v. general intent analysis and holding that assault type crimes are general intent; subsequently superceded by amendments to Penal Code 22 on a different point].)

If both specific and general intent crimes are charged, the court must specify those general intent crimes in the last bracketed paragraph and instruct the jury that voluntary intoxication is not a defense to those crimes. (People v. Aguirre (1995) 31 Cal.App.4th 391, 399-402; People v. Rivera 162 Cal.App.3d 141, 145-46.)

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The second paragraph is given if there is an issue about the voluntariness of defendant's intoxication.

Related Instructions

Murder: Voluntary Intoxication, instruction __ (People v. Castillo (1997) 16 Cal.4th 1009).

Aiding and Abetting: Voluntary Intoxication, instruction __ (People v. Mendoza (1998) 18 Cal.4th 1114, 1131-34).

Involuntary Intoxication, instruction __ (People v. Scott (1983) 146 Cal.App.3d 823, 831-32; People v. Velez (1985) 175 Cal.App.3d 785, 795).

AUTHORTIY

Instructional Requirements Pen. Code, 22; People v. Castillo (1997) 16 Cal.4th 1009, 1014; People v. Saille (1991) 54 Cal.3d 1103, 1119.

Burden of Proof People v. Saille (1991) 54 Cal.3d 1103, 1106.

RELATED ISSUES

Intoxication Based on Mistake of Fact is Involuntary

Intoxication resulting from trickery is not "voluntary." (People v. Scott (1983) 146 Cal.App.3d 823, 831-833 [defendant drank punch not knowing it contained hallucinogens; court held his intoxication was result of trickery and mistake and involuntary].)

Unconsciousness Based on Voluntary Intoxication is Not a Complete Defense

Unconsciousness is typically a complete defense to a crime except when it is caused by voluntary intoxication. (People v. Heffington (1973) 32 Cal.App.3d 1, 8.) Unconsciousness caused by voluntary intoxication is governed by Penal Code section 22, rather than by section 26 and is only a partial defense to a crime. (People v. Walker (1993) 14 Cal.App.4th 1615, 1621 [no error in refusing to instruct on unconsciousness when defendant was voluntarily under the influence of drugs at the time of the crime]; see also People v. Ochoa (1998) 19 Cal.4th 353, 423 ["if the intoxication is voluntarily induced, it can never excuse homicide. Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication."].)

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660. Mistake of Fact

The defendant is not guilty of ______ [insert crime] if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.

If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit ______ [insert crime].

If you find that the defendant believed that ______ [insert alleged mistaken facts] [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for ______ [insert crime].

If you have a reasonable doubt whether the defendant had the specific intent or mental state required for ______ [insert crime], you must find (him/her) not guilty of that crime.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on mistake of fact if substantial evidence supports this defense. (People v. Lucero (1988) 203 Cal.App.3d 1011, 1018.) This instruction also must be given on request. (People v. Goodman (1970) 8 Cal.App.3d 705, 709.)

Depending on the crime charged, the trial court must instruct with the bracketed language requiring that defendant's belief be both actual and reasonable. The following crimes require that the defendant's belief be reasonable and actual and require this bracketed language:

Assault People v. Rivera (1984) 157 Cal.App.3d 736.

Bigamy People v. Vogel (1956) 46 Cal.2d 798, 803.

Kidnapping People v. Barnett (1998) 17 Cal.4th 1044.

Trespass and Burglary People v. Irizarry (1995) 37 Cal.App.4th 967, 975.

Rape People v. Mayberry (1975) 15 Cal.3d 143, 153-59.

Statutory Rape People v. Hernandez (1964) 61 Cal.2d 529, 535.

Molesting a Minor People v. Atchinson (1978) 22 Cal.3d 181.

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Contributing to the Delinquency of a Minor People v. Atchinson (1978) 22 Cal.3d 181.

Oral Copulation With a Minor People v. Peterson (1981) 126 Cal.App.3d 396.