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Jury Trial - Trial Process & Jury Instructions in California

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Jury Trial Trial Process Overview & California Jury Instructions

The United State Constitution grants every criminal defendant the right to jury trial in both misdemeanor and felony cases. California law requires an impartial jury selected from a representative cross-section of residents of the county in which the crime was allegedly committed. The following constitutional rights are applicable during criminal trials: the right to counsel; the right to a public trial; the right to trial by jury; the right to a fair and impartial trial; the right to control witnesses in court; the right to compulsory process to obtain witnesses; and the privilege against self-incrimination. A violation of any of these rights may result in a reversal of the conviction upon appeal. An experienced and aggressive Los Angeles Criminal Defense Attorney of Wallin & Klarich will ensure that any and all of the defendant’s state and federal rights are honored.

Bench Trial

Opposing parties to a felony or misdemeanor proceeding may waive the right to jury trial and permit a bench trial to ensue. A bench trial grants the judge the power to decide the verdict, as opposed to a traditional jury. The defendant must personally waive his/he right to jury trial, however his/her waiver alone will not suffice. The prosecutor must also waive the right to trial by jury. In most cases, jury trials are preferred, especially from the perspective of the defense. However, in some cases, a bench trial is preferable. The Los Angeles Criminal Defense Lawyers of Wallin & Klarich are adept to make such decisions based on the facts of the particular case. The right to a jury trial does not attach to infractions. One accused of an infraction undergoes a trial before a judge. In infraction cases, traditional trial procedures generally apply, except that the judge examines the evidence and decides the verdict. The judge sets the punishment immediately after the verdict is read.

Pretrial Motions: Motions in Limine

jury trial

Pretrial motions, or motions in limine, comprise the first stage of trial. Made before trial begins, pretrial motions are mechanisms through which each party asks the court to decide whether particular evidence will be admissible at trial. Most commonly, pretrial motions are made to exclude evidence that a particular party believes to be prejudicial. This may include a motion in limine to exclude evidence of the defendant’s previous criminal charges.

Jury Selection

During jury selection, the prosecution and defense will engage in voir dire, a direct examination of prospective jurors. Some jurors are excused “for cause,” and others are excused at the discretion of the attorneys (“peremptory challenges”). In the end, twelve impartial jurors are selected.

Opening Statements

After jury selection is complete, both parties give opening statements in which they present an overview of what is to come in the case. The opening statements will preview the evidence to expect during trial, including physical evidence and witness testimony. In some cases, the defense can reserve opening statements until after the prosecution has rested. The Los Angeles Criminal Defense Attorneys at Wallin & Klarich are adept in making these tactical choices.

Trial Testimony

As witnesses from both the defense and prosecution testify, each side engages in examination and cross-examination of the respective testimony. This portion spans anywhere between several days and several weeks.

Closing Argument

When trial testimony has concluded, both parties give closing statements in which they review the evidence presented to the jury.

Jury Instructions

After closing arguments are completed by the lawyers, the judge will read to the jury the applicable criminal jury instructions that relate to the case. Please find below the jury instructions that will likely be read by the jury. In addition, you can read how the courts in California have interpreted these required jury instructions. It is essential that your lawyer is familiar with the jury instructions that are appropriate in your case.

Jury Deliberations

After closing arguments, jury deliberations begin. During this time, the jury may ask the judge for clarification about specific legal or factual issues and may request a reexamination of the evidence. The court reporter may read back testimony from prior witnesses to allow the jurors to reexamine.

The Verdict

The verdict may come in three forms: guilty, not guilty or deadlocked. In California, the jury verdict in criminal cases must be unanimous. If the jury is unable to reach a unanimous verdict, the jury is deemed “hung”. If the jury was provided adequate time to deliberate and was unable to reach a verdict, a retrial may take place at the discretion of the prosecutor. The defense may request dismissal to avoid retrial.

Contact Wallin & Klarich Today

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Contact the experienced jury trial attorneys at Wallin & Klarich today

If you or your loved ones are facing criminal charges, you will need an experienced and aggressive California Criminal Defense Lawyer to structure and implement your most effective defense. The attorneys at Wallin & Klarich have over 40 years of experience defending individuals in criminal cases. Please contact us at (877) 4-NO-JAIL or (877)466-5245 or submit the format the top of this page for more information.

General Jury Instructions Given In A Criminal Case

Judicial Council of California Criminal Jury Instruction 100: Trial Process (Before or After Voir Dire).

[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. When I refer to “the People,” I mean the attorney[s] from the (district attorney's office/city attorney's office/office of the attorney general) who (is/are) trying this case on behalf of the People of the State of California. When I refer to defense counsel, I mean the attorney[s] who (is/are) representing the defendant[s], <insert name[s] of defendant[s]>. [The first step in this trial is jury selection. During jury selection, the attorneys and I will ask you questions. These questions are not meant to embarrass you, but rather to determine whether you would be suitable to sit as a juror in this case.] The trial will (then/now) proceed as follows: The People may present an opening statement. The defense is not required to present an opening statement, but if it chooses to do so, it may give it either after the People's opening statement or at the beginning of the defense case. The purpose of an opening statement is to give you an overview of what the attorneys expect the evidence will show. Next, the People will offer their evidence. Evidence usually includes witness testimony and exhibits. After the People present their evidence, the defense may also present evidence but is not required to do so. Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty. After you have heard all the evidence and [before] the attorneys (give/have given) their final arguments, I will instruct you on the law that applies to the case. After you have heard the arguments and instructions, you will go to the jury room to deliberate.

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. See California Rules of Court, Rule 2.1035. The court may give the optional bracketed language if using this instruction before jury selection begins.

AUTHORITY

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179–1181 [67 Cal.Rptr.3d 871].

Judicial Council of California Criminal Jury Instruction 101: Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected).

Our system of justice requires that trials be conducted in open court with the parties presenting evidence and the judge deciding the law that applies to the case. It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant and the parties will not have had the opportunity to examine and respond to it. Your verdict must be based only on the evidence presented during trial in this court and the law as I provide it to you. During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisers, or therapists. Do not share information about the case in writing, by email, by telephone, on the Internet, or by any other means of communication. You must not talk about these things with other jurors either, until you begin deliberating. 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 may discuss the case only in the jury room, and only when all jurors are present. You must not allow anything that happens outside of the courtroom to affect your decision [unless I tell you otherwise]. During the trial, do not read, listen to, or watch any news report or commentary about the case from any source. Do not use the Internet (, a dictionary/[, or <insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not investigate the facts or the law or do any research regarding this case. Do not conduct any tests or 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. [If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom and during jury deliberations. An electronic device includes any data storage device. If someone needs to contact you in an emergency, the court can receive messages that it will deliver to you without delay.] During the trial, do not speak to a defendant, witness, lawyer, or anyone associated with them. Do 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. If you receive any information about this case from any source outside of the trial, even unintentionally, do not share that information with any other juror. If you do receive such information, or if anyone tries to influence you or any juror, you must immediately tell the bailiff. 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. Do not let bias, sympathy, prejudice, or public opinion influence your decision. You must reach your verdict without any consideration of punishment. I want to emphasize that you may not use any form of research or communication, including electronic or wireless research or communication, to research, share, communicate, or allow someone else to communicate with you regarding any subject of the trial. [If you violate this rule, you may be subject to jail time, a fine, or other punishment.] 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.]

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.) See also California Rules of Court, Rule 2.1035. Do not instruct a jury in the penalty phase of a capital case that they cannot consider sympathy. (People v. Easley (1982) 34 Cal.3d 858, 875–880 [196 Cal.Rptr. 309, 671 P.2d 813].) Instead of this instruction, CALCRIM 761 is the proper introductory instruction for the penalty phase of a capital case. If there will be a jury view, give the bracketed phrase “unless I tell you otherwise” in the fourth paragraph. (Pen. Code, § 1119.)

AUTHORITY

Statutory Admonitions. Pen. Code, § 1122.

Avoid Discussing the Case. People v. Pierce (1979) 24 Cal.3d 199 [155 Cal.Rptr. 657, 595 P.2d 91]; In re Hitchings (1993) 6 Cal.4th 97 [24 Cal.Rptr.2d 74, 860 P.2d 466]; In re Carpenter (1995) 9 Cal.4th 634, 646–658 [38 Cal.Rptr.2d 665, 889 P.2d 985].

Avoid News Reports. People v. Holloway (1990) 50 Cal.3d 1098, 1108–1111 [269 Cal.Rptr. 530, 790 P.2d 1327], disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830 [38 Cal.Rptr.2d. 394, 889 P.2d 588].

Judge's Conduct as Indication of Verdict. People v. Hunt (1915) 26 Cal.App. 514, 517 [147 P. 476].

No Bias, Sympathy, or Prejudice. People v. Hawthorne (1992) 4 Cal.4th 43, 73 [14 Cal.Rptr.2d 133, 841 P.2d 118].

No Independent Research. People v. Karis (1988) 46 Cal.3d 612, 642 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v. Castro (1986) 184 Cal.App.3d 849, 853 [229 Cal.Rptr. 280]; People v. Sutter (1982) 134 Cal.App.3d 806, 820 [184 Cal.Rptr. 829].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1182–1183 [67 Cal.Rptr.3d 871].

Court’s Contempt Power for Violations of Admonitions. Pen. Code, § 1122(a)(1); Code Civ. Proc. § 1209(a)(6) (effective 1/1/12).

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 643. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury Selection and Opening Statement, § 81.06[1], Ch. 85, Submission to Jury and Verdict, § 85.05[1], [4] (Matthew Bender).

RELATED ISSUES

Admonition Not to Discuss Case With Anyone In People v. Danks (2004) 32 Cal.4th 269, 298–300 [8 Cal.Rptr.3d 767, 82 P.3d 1249], a capital case, two jurors violated the court's admonition not to discuss the case with anyone by consulting with their pastors regarding the death penalty. The Supreme Court stated: It is troubling that during deliberations not one but two jurors had conversations with their pastors that ultimately addressed the issue being resolved at the penalty phase in this case. Because jurors instructed not to speak to anyone about the case except a fellow juror during deliberations …. may assume such an instruction does not apply to confidential relationships, we recommend the jury be expressly instructed that they may not speak to anyone about the case, except a fellow juror during deliberations, and that this includes, but is not limited to, spouses, spiritual leaders or advisers, or therapists. Moreover, the jury should also be instructed that if anyone, other than a fellow juror during deliberations, tells a juror his or her view of the evidence in the case, the juror should report that conversation immediately to the court. (Id. at p. 306, fn. 11.) The court may, at its discretion, add the suggested language to the second paragraph of this instruction. Jury Misconduct It is error to instruct the jury to immediately advise the court if a juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty, punishment, or any other improper basis. (People v. Engelman (2002) 28 Cal.4th 436, 449 [121 Cal.Rptr.2d 862, 49 P.3d 209].)

Judicial Council of California Criminal Jury Instruction 102: Note-Taking.

You have been given notebooks and may take notes during the trial. Do not remove them from the courtroom. You may take your notes into the jury room during deliberations. I do not mean to discourage you from taking notes, but here are some points to consider if you take notes: 1 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; AND 2 The notes are for your own individual use to help you remember what happened during the trial. Please keep in mind that your notes may be inaccurate or incomplete. At the end of the trial, your notes will be (collected and destroyed/collected and retained by the court but not as a part of the case record/<specify other disposition>).

BENCH NOTES

Instructional Duty The court has a sua sponte duty to instruct the members of the jury that they may take notes. California Rules of Court, Rule 2.1031. The court may specify its preferred disposition of the notes after trial. No statute or rule of court requires any particular disposition.

AUTHORITY

Resolving Jurors' Questions. Pen. Code, § 1137.

Jurors' Use of Notes. California Rules of Court, Rule 2.1031

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1183 [67 Cal.Rptr.3d 871].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 643. 6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 18. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.05[2] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 103: Reasonable Doubt.

I will now explain the presumption of innocence and the People's burden of proof. The defendant[s] (has/have) pleaded not guilty to the charge[s]. The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. 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. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) 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, 225–227 [115 Cal.Rptr. 352, 524 P.2d 824]; People v. Soldavini (1941) 45 Cal.App.2d 460, 463 [114 P.2d 415]; People v. Phillips (1997) 59 Cal.App.4th 952, 956–958 [69 Cal.Rptr.2d 532].) 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. If the court will be instructing that the prosecution must prove something by a preponderance of the evidence, give the bracketed phrase “unless I specifically tell you otherwise.”

AUTHORITY

Instructional Requirements. Pen. Code, §§ 1096, 1096a; People v. Freeman (1994) 8 Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; Victor v. Nebraska (1994) 511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583]; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997.

Previous Version of CALCRIM 103 Upheld. People v. Reyes (2007) 151 Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777].

Reference to Elements Not Required. People v. Ramos (2008) 163 Cal.App.4th 1082, 1088–1089 [78 Cal.Rptr.3d 186].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 521, 637, 640. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.03[1], Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][a][i], 85.04[2][a] (Matthew Bender).

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 Victor v. Nebraska (1994) 511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583].) 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, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; People v. Garcia (1975) 54 Cal.App.3d 61 [126 Cal.Rptr. 275].) The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language.

Judicial Council of California Criminal Jury Instruction 104: Evidence.

You must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom [or during a jury view]. “Evidence” is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence. The fact that the defendant was arrested, charged with a crime, or brought to trial is not evidence of guilt. Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence. Their questions are 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 true. During the trial, the attorneys may object to questions asked of a witness. I will rule on the objections according to the law. If I sustain an objection, 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. If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose. You must disregard anything you see or hear when the court is not in session, even if it is done or said by one of the parties or witnesses. The court reporter is making a record of everything that was said during the trial. If you decide that it is necessary, you may ask that the court reporter's record be read to you. You must accept the court reporter's record as accurate.

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 [193 Cal.Rptr. 750]; People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Horton (1995) 11 Cal.4th 1068, 1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].)

AUTHORITY

Evidence Defined. Evid. Code, § 140.

Arguments Not Evidence. People v. Barajas (1983) 145 Cal.App.3d 804, 809 [193 Cal.Rptr. 750].

Questions Not Evidence. People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64 Cal.Rptr.2d 400, 938 P.2d 2].

Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1183 [67 Cal.Rptr.3d 871].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 636. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, §§ 83.01[1], 83.02[2] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 105: Witnesses.

You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:

How well could the witness see, hear, or otherwise perceive the things about which the witness testified?

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

What was the witness's behavior while testifying?

Did the witness understand the questions and answer them directly?

Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?

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

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

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

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

[Did the witness admit to being untruthful?]

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

[Has the witness been convicted of a felony?]

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

[Was the witness promised immunity or leniency in exchange for his or her testimony?]

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. [If the evidence establishes that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.] [If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject.] [If you decide that a witness deliberately lied about something significant in this case, you should consider not believing 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.]

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, 883–884 [123 Cal.Rptr. 119, 538 P.2d 247].) 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 [175 P.2d 607]; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21].) The court may strike any of the enumerated impermissible bases for bias that are clearly inapplicable in a given case. Give all of the bracketed factors that are relevant based on the evidence. (Evid. Code, § 780(e), (i), and (k).) Give any of the final three bracketed paragraphs if relevant based on the evidence.

AUTHORITY

Factors. Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123 Cal.Rptr. 119, 538 P.2d 247].

Proof of Character by Negative Evidence. People v. Adams (1902) 137 Cal. 580, 582 [70 P. 662].

Inconsistencies. Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175 P.2d 607].

Witness Who Lies. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21]; People v. Reyes (1987) 195 Cal.App.3d 957, 965 [240 Cal.Rptr. 752]; People v. Johnson (1986) 190 Cal.App.3d 187, 192–194 [237 Cal.Rptr. 479].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000), Criminal Trial, § 642. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b], [c], 85.03[2][b] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 106: Jurors Asking Questions.

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. Do not feel slighted or disappointed if your question is not asked. Your question may not be asked for a variety of reasons, including the reason that the question may call for an answer that is inadmissible for legal reasons. Also, do not guess the reason your question was not asked or speculate about what the answer might have been. Always remember that you are not advocates for one side or the other in this case. You are impartial judges of the facts.

BENCH NOTES

Instructional Duty This instruction may be given on request.

AUTHORITY

Statutory Admonitions. See generally Pen. Code, § 1122.

Juror Questions. California Rules of Court, Rule 2.1033.

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000 Criminal Trial, § 643. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.02[2] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 200: Duties of Judge and Jury.

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 to use in the jury room.] [The instructions that you receive may be printed, typed, or written by hand. Certain sections may have been crossed-out or added. Disregard any deleted sections and do not try to guess what they might have been. Only consider the final version of the instructions in your deliberations.] You must decide what the facts are. It is up to all of you, and you alone to decide what happened, based only on the evidence that has been presented to you in this trial. Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant[s] or alleged victim[s], based on disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, age, [or] socioeconomic status (./,) [or <insert any other impermissible basis for bias as appropriate>.] You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions. Pay careful attention to all of these instructions and consider them together. If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it. Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings. Some of these instructions may not apply, depending on your findings about the facts of the case. [Do not assume just because I give a particular instruction that I am suggesting anything about the facts.] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.

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.) 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. In the first paragraph, select the appropriate bracketed alternative on written instructions. Penal Code section 1093(f) requires the court to give the jury a written copy of the instructions on request. The committee believes that the better practice is to always provide the jury with written instructions. If the court, in the absence of a jury request, elects not to provide jurors with written instructions, the court must modify the first paragraph to inform the jurors that they may request a written copy of the instructions. Do not instruct a jury in the penalty phase of a capital case that they cannot consider sympathy. (People v. Easley (1982) 34 Cal.3d 858, 875–880 [196 Cal.Rptr. 309, 671 P.2d 813].) Instead of this instruction, CALCRIM 761 is the proper introductory instruction for the penalty phase of a capital case. Do not give the bracketed sentence in the final paragraph if the court will be commenting on the evidence pursuant to Penal Code section 1127.

AUTHORITY

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

Judge Determines Law. Pen. Code, §§ 1124, 1126; People v. Como (2002) 95 Cal.App.4th 1088, 1091 [115 Cal.Rptr.2d 922]; see People v. Williams (2001) 25 Cal.4th 441, 455 [106 Cal.Rptr.2d 295, 21 P.3d 1209].

Jury to Decide the Facts. Pen. Code, § 1127.

Attorney's Comments Are Not Evidence. People v. Stuart (1959) 168 Cal.App.2d 57, 60–61 [335 P.2d 189].

Consider All Instructions Together. People v. Osband (1996) 13 Cal.4th 622, 679 [55 Cal.Rptr.2d 26, 919 P.2d 640]; People v. Rivers (1993) 20 Cal.App.4th 1040, 1046 [25 Cal.Rptr.2d 602]; People v. Shaw (1965) 237 Cal.App.2d 606, 623 [47 Cal.Rptr. 96].

Follow Applicable Instructions. People v. Palmer (1946) 76 Cal.App.2d 679, 686–687 [173 P.2d 680].

No Bias, Sympathy, or Prejudice. Pen. Code, § 1127h; People v. Hawthorne (1992) 4 Cal.4th 43, 73 [14 Cal.Rptr.2d 133, 841 P.2d 118].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185 [67 Cal.Rptr.3d 871].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 643, 644. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80, Defendant's Trial Rights, § 80.05[1], Ch. 83, Evidence, § 83.02, Ch. 85, Submission to Jury and Verdict, §§ 85.02[1], [2][c], 85.03[1], 85.05[2], [4] (Matthew Bender).

RELATED ISSUES

Jury Misconduct It is error to instruct the jury to immediately advise the court if a juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty, punishment, or any other improper basis. (People v. Engelman (2002) 28 Cal.4th 436, 449 [121 Cal.Rptr.2d 862, 49 P.3d 209].)

Judicial Council of California Criminal Jury Instruction 201: Do Not Investigate.

Do not use the Internet (, a dictionary/[, or __________<insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not investigate the facts or the law or do any research regarding this case, either on your own, or as a group. Do not conduct any tests or 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.

New January 2006; Revised June 2007, April 2010, February 2012

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.)

AUTHORITY

No Independent Research. Pen. Code, § 1122; People v. Karis (1988) 46 Cal.3d 612, 642 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v. Castro (1986) 184 Cal.App.3d 849, 853 [229 Cal.Rptr. 280]; People v. Sutter (1982) 134 Cal.App.3d 806, 820 [184 Cal.Rptr. 829].

Secondary Sources 6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 21. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury Selection and Opening Statement, § 81.06[1], Ch. 85, Submission to Jury and Verdict, § 85.05[4][a][i] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 202: Note-Taking and Reading Back of Testimony.

[You have been given notebooks and may have taken notes during the trial. You may use your notes during deliberations.] Your notes are for your own individual use to help you remember what happened during the trial. Please keep in mind that your notes may be inaccurate or incomplete. If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the court reporter's record be read to you. It is the record that must guide your deliberations, not your notes. You must accept the court reporter's record as accurate. Please do not remove your notes from the jury room. At the end of the trial, your notes will be (collected and destroyed/collected and retained by the court but not as a part of the case record/<specify other disposition>).

BENCH NOTES

Instructional Duty The court has a sua sponte duty to instruct the members of the jury that they may take notes. California Rules of Court, Rule 2.1031. The court may specify its preferred disposition of the notes after trial. No statute or rule of court requires any particular disposition.

AUTHORITY

• Jurors' Use of Notes. California Rules of Court, Rule 2.1031. Secondary Sources 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.05[1], Ch. 85, Submission to Jury and Verdict, § 85.05[2], [3], Ch. 87, Death Penalty, §§ 87.20, 87.24 (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 220: Reasonable Doubt.

The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. 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. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) 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. (People v. Vann (1974) 12 Cal.3d 220, 225–227 [115 Cal.Rptr. 352, 524 P.2d 824]; People v. Soldavini (1941) 45 Cal.App.2d 460, 463 [114 P.2d 415]; People v. Phillips (1997) 59 Cal.App.4th 952, 956–958 [69 Cal.Rptr.2d 532].) If the court will be instructing that the prosecution has a different burden of proof, give the bracketed phrase “unless I specifically tell you otherwise.”

AUTHORITY

Instructional Requirements. Pen. Code, §§ 1096, 1096a; People v. Freeman (1994) 8 Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; Victor v. Nebraska (1994) 511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583]; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999.

This Instruction Upheld. People v. Ramos (2008) 163 Cal.App.4th 1082, 1088–1089 [78 Cal.Rptr.3d 186].

This Instruction Does Not Suggest That Bias Against Defendant Is Permissible. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185–1186 [67 Cal.Rptr.3d 871].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 521, 637, 640. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.03[1], Ch. 85, Submission to Jury and Verdict, §§ 85.02[1A][a], [2][a][i], 85.04[2][a] (Matthew Bender).

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 Victor v. Nebraska (1994) 511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583].) 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, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; People v. Garcia (1975) 54 Cal.App.3d 61, 63 [126 Cal.Rptr. 275].) The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language. For an alternate view of instructing on reasonable doubt, see Committee on Standard Jury Instructions—Criminal, Minority Report to CALJIC “Reasonable Doubt” Report, in Alternative Definitions of Reasonable Doubt: A Report to the California Legislature (May 22, 1987; repr., San Francisco: Daily Journal, 1987) pp. 51–53.

RELATED ISSUES

Pinpoint Instruction on Reasonable Doubt 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 [84 Cal.Rptr. 711, 465 P.2d 847] [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 [185 Cal.Rptr. 506] [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, 496 [319 P.2d 346] [error to refuse instruction relating reasonable doubt to commission of felony in felony-murder case]; People v. Brown (1984) 152 Cal.App.3d 674, 677–678 [199 Cal.Rptr. 680] [error to refuse instruction relating reasonable doubt to identification].)

Judicial Council of California Criminal Jury Instruction 222: Evidence.

“Evidence” is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. 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 attorneys' 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 true. 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. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose. 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. [During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means that they both accept those facts as true. Because there is no dispute about those facts you must also accept them as true.] The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask that the court reporter's record be read to you. You must accept the court reporter's record as accurate.

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 [193 Cal.Rptr. 750]; People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Horton (1995) 11 Cal.4th 1068, 1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].) If the parties stipulated to one or more facts, give the bracketed paragraph that begins with “During the trial, you were told.”

AUTHORITY

Evidence Defined. Evid. Code, § 140.

Arguments Not Evidence. People v. Barajas (1983) 145 Cal.App.3d 804, 809 [193 Cal.Rptr. 750].

Questions Not Evidence. People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64 Cal.Rptr.2d 400].

Stipulations. Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141–142 [199 P.2d 952].

Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 636, 643. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, §§ 83.01[1], 83.02[2] (Matthew Bender).

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 [206 Cal.Rptr. 468] [defendant was disruptive in court; court instructed jurors they should not consider this behavior in deciding guilt or innocence].) However, if the defendant has put his or her character in issue or another basis for relevance exists, such an instruction should not be given. (People v. Garcia, supra, 160 Cal.App.3d at p. 91, fn. 7; People v. Foster (1988) 201 Cal.App.3d 20, 25 [246 Cal.Rptr. 855].)

Judicial Council of California Criminal Jury Instruction 223: Direct and Circumstantial Evidence: Defined.

Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give this instruction explaining direct and 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 [286 P.2d 1] [duty exists where circumstantial evidence relied on to prove any element, including intent]; see People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Heishman (1988) 45 Cal.3d 147, 167 [246 Cal.Rptr. 673, 753 P.2d 629].) The court must give this instruction if the court will be giving either CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence or CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State. The court, at its discretion, may give this instruction in any case in which circumstantial evidence has been presented.

AUTHORITY

Direct Evidence Defined. Evid. Code, § 410.

Logical and Reasonable Inference Defined. Evid. Code, § 600(b).

Difference Between Direct and Circumstantial Evidence. People v. Lim Foon (1915) 29 Cal.App. 270, 274 [155 P. 477] [no sua sponte duty to instruct, but court approves definition]; People v. Goldstein (1956) 139 Cal.App.2d 146, 152–153 [293 P.2d 495] [sua sponte duty to instruct].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186 [67 Cal.Rptr.3d 871].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 3. 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 652. 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 117. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.01[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][a] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 224: Circumstantial Evidence: Sufficiency of Evidence.

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

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 [286 P.2d 1] [duty exists where circumstantial evidence relied on to prove any element, including intent]; see People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Heishman (1988) 45 Cal.3d 147, 167 [246 Cal.Rptr. 673, 753 P.2d 629].) There is no sua sponte duty to give this instruction when the circumstantial evidence is incidental to and corroborative of direct evidence. (People v. Malbrough (1961) 55 Cal.2d 249, 250–251 [10 Cal.Rptr. 632, 359 P.2d 30]; People v. Watson (1956) 46 Cal.2d 818, 831 [299 P.2d 243]; People v. Shea (1995) 39 Cal.App.4th 1257, 1270–1271 [46 Cal.Rptr.2d 388].) This is so even when the corroborative circumstantial evidence is essential to the prosecution's case, e.g., when corroboration of an accomplice's testimony is required under Penal Code section 1111. (People v. Williams (1984) 162 Cal.App.3d 869, 874 [208 Cal.Rptr. 790].) If intent is the only element proved by circumstantial evidence, do not give this instruction. Give CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State. (People v. Marshall (1996) 13 Cal.4th 799, 849 [55 Cal.Rptr.2d 347, 919 P.2d 1280].)

AUTHORITY

Direct Evidence Defined. Evid. Code, § 410.

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

Between Two Reasonable Interpretations of Circumstantial Evidence, Accept the One That Points to Innocence. People v. Merkouris (1956) 46 Cal.2d 540, 560–562 [297 P.2d 999] [error to refuse requested instruction on this point]; People v. Johnson (1958) 163 Cal.App.2d 58, 62 [328 P.2d 809] [sua sponte duty to instruct]; see People v. Wade (1995) 39 Cal.App.4th 1487, 1492 [46 Cal.Rptr.2d 645].

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 [163 P.2d 8] [sua sponte duty to instruct]; People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1] [same].

Difference Between Direct and Circumstantial Evidence. People v. Lim Foon (1915) 29 Cal.App. 270, 274 [155 P. 477] [no sua sponte duty to instruct, but court approves definition]; People v. Goldstein (1956) 139 Cal.App.2d 146, 152–153 [293 P.2d 495] [sua sponte duty to instruct].

Each Fact in Chain of Circumstantial Evidence Must Be Proved. People v. Watson (1956) 46 Cal.2d 818, 831 [299 P.2d 243] [error to refuse requested instruction on this point].

Sua Sponte Duty When Prosecutor's Case Rests Substantially on Circumstantial Evidence. People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr. 368, 729 P.2d 802].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186–1187 [67 Cal.Rptr.3d 871].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 3. 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 652. 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 117. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.01[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][a] (Matthew Bender).

RELATED ISSUES

Extrajudicial Admissions Extrajudicial admissions are not the type of indirect evidence requiring instruction on circumstantial evidence. (People v. Wiley (1976) 18 Cal.3d 162, 174–175 [133 Cal.Rptr. 135, 554 P.2d 881].)

Judicial Council of California Criminal Jury Instruction 225: Circumstantial Evidence: Intent or Mental State.

The People must prove not only that the defendant did the act[s] charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

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 the element of a specific intent or a mental state. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1].) Give this instruction when the defendant's intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence. (See People v. Marshall (1996) 13 Cal.4th 799, 849 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; People v. Hughes (2002) 27 Cal.4th 287, 347 [116 Cal.Rptr.2d 401, 39 P.3d 432].) If the court is also instructing on a strict-liability offense, the court may wish to modify this instruction to clarify the charges to which it applies.

AUTHORITY

Instructional Requirements. People v. Lizarraga (1990) 219 Cal.App.3d 476, 481–482 [268 Cal.Rptr. 262] [when both specific intent and mental state are elements].

Intent Manifested by Circumstances. Pen. Code, § 21(a).

Accept Reasonable Interpretation of Circumstantial Evidence That Points Against Specific Intent. People v. Yokum (1956) 145 Cal.App.2d 245, 253–254 [302 P.2d 406], disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413 [189 Cal.Rptr. 159, 658 P.2d 86].

Circumstantial Evidence Must Be Entirely Consistent With Existence of Specific Intent. People v. Yokum (1956) 145 Cal.App.2d 245, 253–254 [302 P.2d 406], disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413 [189 Cal.Rptr. 159, 658 P.2d 86].

Reject Unreasonable Interpretations. People v. Hines (1997) 15 Cal.4th 997, 1049–1050 [64 Cal.Rptr.2d 594, 938 P.2d 388].

This Instruction Upheld. People v. Golde (2008) 163 Cal.App.4th 101, 118 [77 Cal.Rptr.3d 120].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 3, 6. 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 652. 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 117. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][a] (Matthew Bender).

RELATED ISSUES

General or Specific Intent Explained A crime is a general-intent offense when the statutory definition of the crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence. A crime is a specific-intent offense when the statutory definition refers to the defendant's intent to do some further act or achieve some additional consequence. (People v. McDaniel (1979) 24 Cal.3d 661, 669 [156 Cal.Rptr. 865, 597 P.2d 124]; People v. Hood (1969) 1 Cal.3d 444, 456–457 [82 Cal.Rptr. 618, 462 P.2d 370]; People v. Swanson (1983) 142 Cal.App.3d 104, 109 [190 Cal.Rptr. 768]; see, e.g., People v. Whitfield (1994) 7 Cal.4th 437, 449–450 [27 Cal.Rptr.2d 858, 868 P.2d 272] [second degree murder based on implied malice is a specific-intent crime].) Only One Possible Inference The fact that elements of a charged offense include mental elements that must necessarily be proved by inferences drawn from circumstantial evidence does not alone require an instruction on the effect to be given to such evidence. (People v. Heishman (1988) 45 Cal.3d 147, 167 [246 Cal.Rptr. 673, 753 P.2d 629]; People v. Wiley (1976) 18 Cal.3d 162, 174–176 [133 Cal.Rptr. 135, 554 P.2d 881].) When the only inference to be drawn from circumstantial evidence points to the existence of a required specific intent or mental state, a circumstantial evidence instruction need not be given sua sponte, but should be given on request. (People v. Gordon (1982) 136 Cal.App.3d 519, 531 [186 Cal.Rptr. 373]; People v. Morrisson (1979) 92 Cal.App.3d 787, 793–794 [155 Cal.Rptr. 152].) Direct Evidence, Extrajudicial Admission, or No Substantial Reliance This instruction should not be given if direct evidence of the mental elements exists (People v. Wiley (1976) 18 Cal.3d 162, 175 [133 Cal.Rptr. 135, 554 P.2d 881]), if the only circumstantial evidence is an extrajudicial admission (People v. Gould (1960) 54 Cal.2d 621, 629 [7 Cal.Rptr. 273, 354 P.2d 865], overruled on other grounds in People v. Cuevas (1995) 12 Cal.4th 252, 271–272 [48 Cal.Rptr.2d 135, 906 P.2d 1290]), or if the prosecution does not substantially rely on circumstantial evidence (People v. DeLeon (1982) 138 Cal.App.3d 602, 607–608 [188 Cal.Rptr. 63]). See the Related Issues section of CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence.

Judicial Council of California Criminal Jury Instruction 226: Witnesses.

You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:

How well could the witness see, hear, or otherwise perceive the things about which the witness testified?

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

What was the witness's behavior while testifying?

Did the witness understand the questions and answer them directly?

Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?

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

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

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

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

[Did the witness admit to being untruthful?]

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

[Has the witness been convicted of a felony?]

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

[Was the witness promised immunity or leniency in exchange for his or her testimony?]

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. [If the evidence establishes that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.] [If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject.] [If you decide that a witness deliberately lied about something significant in this case, you should consider not believing 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.]

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, 883–884 [123 Cal.Rptr. 119, 538 P.2d 247].) 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 [175 P.2d 607]; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21].) The court may strike any of the enumerated impermissible bases for bias that are clearly inapplicable in a given case. Give all of the bracketed factors that are relevant based on the evidence. (Evid. Code, § 780(e), (i), and (k).) Give any of the final three bracketed paragraphs if relevant based on the evidence. If the court instructs on a prior felony conviction or prior misconduct admitted pursuant to People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d 938], the court should consider whether to give CALCRIM No. 316, Additional Instructions on Witness Credibility—Other Conduct. (See Bench Notes to that instruction.)

Authority

Factors. Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123 Cal.Rptr. 119, 538 P.2d 247].

Inconsistencies. Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175 P.2d 607].

Witness Who Lies. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21].

Proof of Character by Negative Evidence. People v. Adams (1902) 137 Cal. 580, 582 [70 P. 662].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1187–1188 [67 Cal.Rptr.3d 871].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 642. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, §§ 85.02[1A][b], [2][b], [c], 85.03[2][b] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 240: Causation.

An act [or omission] causes (injury/<insert other description>) if the (injury/<insert other description>) is the direct, natural, and probable consequence of the act [or omission] and the (injury/<insert other description>) would not have happened without the act [or omission]. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. <Give if multiple potential causes.> [There may be more than one cause of (injury/<insert other description>). An act [or omission] causes (injury/<insert other description>), only if it is a substantial factor in causing the (injury/<insert other description>). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/<insert other description>).]

BENCH NOTES

Instructional Duty If causation is at issue, the court has a sua sponte duty to instruct on proximate cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr. 401]; People v. Cervantes (2001) 26 Cal.4th 860, 866–874 [111 Cal.Rptr.2d 148, 29 P.3d 225].) The committee has addressed causation in those instructions where the issue is most likely to arise. If the particular facts of the case raise a causation issue and other instructions do not adequately cover the point, give this instruction. If there is evidence of multiple potential causes, the court should also give the bracketed paragraph. (People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135].)

AUTHORITY

Proximate Cause. People v. Cervantes (2001) 26 Cal.4th 860, 866–874 [111 Cal.Rptr.2d 148, 29 P.3d 225]; People v. Roberts (1992) 2 Cal.4th 271, 315–322 [6 Cal.Rptr.2d 276, 826 P.2d 274].

Substantial Factor. People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135].

Independent Intervening Cause. People v. Cervantes (2001) 26 Cal.4th 860, 856–874 [111 Cal.Rptr.2d 148, 29 P.3d 225].

Causation Instructions. People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People v. Roberts (1992) 2 Cal.4th 271, 311–322 [6 Cal.Rptr.2d 276, 826 P.2d 274]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135].

Instructional Duty. People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr. 401].

Natural and Probable Consequences Defined. See People v. Prettyman (1996) 14 Cal.4th 248, 291 [58 Cal.Rptr.2d 827, 926 P.2d 1013] (conc. & dis. opn. of Brown, J.).

Act or Omission. People v. Cervantes (2001) 26 Cal.4th 860, 866 [111 Cal.Rptr.2d 148, 29 P.3d 225].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 35–44. 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 93. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[1A][a] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.04 (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 250: Union of Act and Intent: General Intent.

The crime[s] [or other allegation[s]] charged in this case require[s] proof of the union, or joint operation, of act and wrongful intent. For you to find a person guilty of the crime[s] (in this case/ of <insert name[s] of alleged offense[s] and count[s], e.g., battery, as charged in Count 1> [or to find the allegation[s] of <insert name[s] of enhancement[s]> true]), that person must not only commit the prohibited act [or fail to do the required act], but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act [or fails to do a required act]; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime [or allegation].

BENCH NOTES

Instructional Duty The court has a sua sponte duty to instruct on the union of act and general criminal intent. (People v. Jeffers (1996) 41 Cal.App.4th 917, 920–923 [49 Cal.Rptr.2d 86].) However, this instruction must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. In such cases, the court must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State. If the case involves both offenses requiring a specific intent or mental state and offenses that do not, the court may give CALCRIM No. 252, Union of Act and Intent: General and Specific Intent Together, in place of this instruction. The court should specify for the jury which offenses require only a general criminal intent by inserting the names of the offenses and count numbers where indicated in the second paragraph of the instruction. (People v. Hill (1967) 67 Cal.2d 105, 118 [60 Cal.Rptr. 234, 429 P.2d 586].) If all the charged crimes and allegations involve general intent, the court need not provide a list in the blank provided in this instruction. If the defendant is charged with aiding and abetting or conspiracy to commit a general-intent offense, the court must instruct on the specific intent required for aiding and abetting or conspiracy. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117–1118 [108 Cal.Rptr.2d 188, 24 P.3d 1210]; People v. Bernhardt, supra, 222 Cal.App.2d at pp. 586–587.) If the defendant is also charged with a criminal negligence or strict liability offense, insert the name of the offense where indicated in the first sentence. The court may also give CALCRIM No. 253, Union of Act and Intent: Criminal Negligence, or CALCRIM No. 254, Union of Act and Intent: Strict-Liability Crime. Defenses—Instructional Duty “A person who commits a prohibited act ‘through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence’ has not committed a crime.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49 Cal.Rptr.2d 86] [quoting Pen. Code, § 26].) Similarly, an honest and reasonable mistake of fact may negate general criminal intent. (People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr. 361, 393 P.2d 673].) If there is sufficient evidence of these or other defenses, such as unconsciousness, the court has a sua sponte duty to give the appropriate defense instructions. (See Defenses and Insanity, CALCRIM No. 3400 et seq.)

AUTHORITY

Statutory Authority. Pen. Code, § 20; see also Evid. Code, §§ 665, 668.

Instructional Requirements. People v. Hill (1967) 67 Cal.2d 105, 117 [60 Cal.Rptr. 234, 429 P.2d 586]; People v. Bernhardt (1963) 222 Cal.App.2d 567, 586–587 [35 Cal.Rptr. 401]; People v. Jeffers (1996) 41 Cal.App.4th 917, 920–923 [49 Cal.Rptr.2d 86].

History of General-Intent Requirement. Morissette v. United States (1952) 342 U.S. 246 [72 S.Ct. 240, 96 L.Ed. 288]; see also People v. Garcia (2001) 25 Cal.4th 744, 754 [107 Cal.Rptr.2d 355, 23 P.3d 590].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 1–5. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][e] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02[1], [2] (Matthew Bender).

RELATED ISSUES

Sex Registration and Knowledge of Legal Duty The offense of failure to register as a sex offender requires proof that the defendant actually knew of his or her duty to register. (People v. Garcia (2001) 25 Cal.4th 744, 754 [107 Cal.Rptr.2d 355, 23 P.3d 590].) For the charge of failure to register, it is error to give an instruction on general criminal intent that informs the jury that a person is “acting with general criminal intent, even though he may not know that his act or conduct is unlawful.” (People v. Barker (2004) 34 Cal.4th 345, 360 [18 Cal.Rtpr.3d 260]; People v. Edgar (2002) 104 Cal.App.4th 210, 219 [127 Cal.Rptr.2d 662].) In such cases, the court should give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State, instead of this instruction.

Judicial Council of California Criminal Jury Instruction 300: 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 The court is not required to give this instruction 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 [273 Cal.Rptr. 757].)

AUTHORITY

Instructional Requirements. People v. Simms (1970) 10 Cal.App.3d 299, 313 [89 Cal.Rptr.1].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189–1190 [67 Cal.Rptr.3d 871].

Secondary Sources 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, Ch. 83, Evidence (Matthew Bender).

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, 549–550 [71 Cal.Rptr. 339].) 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 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 [187 P.2d 16], overruled on other grounds as noted by People v. Balderas (1985) 41 Cal.3d 144, 182 [222 Cal.Rptr. 184, 711 P.2d 480] [“[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.”].)

Judicial Council of California Criminal Jury Instruction 301: Single Witness's Testimony.

[Except for the testimony of <insert witness's name>, which requires supporting evidence [if you decide (he/she) is an accomplice],] (the/The) testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give an instruction on this issue in every case. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884–885 [123 Cal.Rptr. 119, 538 P.2d 247].) Insert the bracketed language if the testimony of an accomplice or other witness requires corroboration. (People v. Chavez (1985) 39 Cal.3d 823, 831–832 [218 Cal.Rptr. 49, 705 P.2d 372].) The following constitutional provisions and statutes require evidence that corroborates a witness's testimony: Cal. Const., art. I, § 18 [treason]; Pen. Code, §§ 1111 [accomplice testimony]; 653f [solicitation of felony]; 118 [perjury]; 1108 [abortion and seduction of minor]; 532 [obtaining property by false pretenses]. Give the bracketed phrase “if you decide (he/she) is an accomplice” and CALCRIM No. 334 if the jury must determine whether a witness is an accomplice.

AUTHORITY

Instructional Requirements. Evid. Code, § 411; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885 [123 Cal.Rptr. 119, 538 P.2d 247].

Corroboration Required. People v. Chavez (1985) 39 Cal.3d 823, 831–832 [218 Cal.Rptr. 49, 705 P.2d 372].

Secondary Sources 3 Witkin, California Evidence (4th ed. 2000) Presentation, § 111. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).

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 [268 Cal.Rptr. 706, 789 P.2d 887].) 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 (1992) 2 Cal.4th 693, 700–702 [7 Cal.Rptr.2d 541, 828 P.2d 682] [resolving split of authority on whether the two instructions can be given together].)

Judicial Council of California Criminal Jury Instruction 302: Evaluating Conflicting Evidence.

If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.

BENCH NOTES

Instructional Duty The court has a sua sponte duty to instruct on weighing contradictory evidence unless corroborating evidence is required. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884 [123 Cal.Rptr. 119, 538 P.2d 247].)

AUTHORITY

Instructional Requirements. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884 [123 Cal.Rptr. 119, 538 P.2d 247].

This Instruction Upheld. People v. Reyes (2007) 151 Cal.App.4th 1491, 1497 [60 Cal.Rptr.3d 777]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190 [67 Cal.Rptr.3d 871].

Secondary Sources 3 Witkin, California Evidence (4th ed. 2000) Presentation, § 88. 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 649. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 303: 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 for 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 [89 Cal.Rptr. 1].)

AUTHORITY

Instructional Requirements. Evid. Code, § 355; People v. Simms (1970) 10 Cal.App.3d 299, 311 [89 Cal.Rptr. 1].

Secondary Sources 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, §§ 30, 31, 35. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.04[3], Ch. 85, Submission to Jury and Verdict, § 85.02[2][b] (Matthew Bender).

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, 533–534 [71 Cal.Rptr.2d 680, 950 P.2d 1035] [giving limiting instruction regarding use of defendant's statements to psychiatrist at close of all evidence did not result in error].)

Judicial Council of California Criminal Jury Instruction 316: Additional Instructions on Witness Credibility—Other Conduct.

<Alternative A—felony conviction> [If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.] <Alternative B—prior criminal conduct with or without conviction> [If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.]

BENCH NOTES

Instructional Duty There is no sua sponte duty to give this instruction; however, the instruction must be given on request. (People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [260 Cal.Rptr. 27]; People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080] [overruling People v. Mayfield (1972) 23 Cal.App.3d 236 [100 Cal.Rptr. 104], which had found a sua sponte duty to give limiting instruction on felony conviction admitted for impeachment].) If a felony conviction or other misconduct has been admitted only on the issue of credibility, give the bracketed word “only.” Do not give this instruction if a conviction also has been admitted to prove an element of a charged offense. (People v. Dewberry (1959) 51 Cal.2d 548, 553–554 [334 P.2d 852].) It is unclear whether this instruction is appropriate if the evidence also has been admitted for a purpose other than to prove an element of the offense (as discussed above). For example, the evidence may have been admitted under Evidence Code section 1108. In such cases, if the court does give this instruction, the court may omit the bracketed “only.”

AUTHORITY

Limiting Instruction Must Be Given on Request. People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [260 Cal.Rptr. 27]; People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].

Felony Conviction Admissible for Impeachment. Evid. Code, § 788.

Standard for Admitting Felony Conviction. People v. Castro (1985) 38 Cal.3d 301, 306–319 [211 Cal.Rptr. 719, 696 P.2d 111]; People v. Beagle (1972) 6 Cal.3d 441, 451–452 [99 Cal.Rptr. 313, 492 P.2d 1].

Misdemeanor Conduct Admissible for Impeachment. People v. Wheeler (1992) 4 Cal.4th 284, 295–296 [14 Cal.Rptr.2d 418, 841 P.2d 938].

Record Must Demonstrate Court Conducted Evid. Code, § 352 Weighing. People v. Navarez (1985) 169 Cal.App.3d 936, 950 [215 Cal.Rptr. 519].

Modifications to this Instruction Created Error. People v. Gray (2007) 158 Cal.App.4th 635, 640–641 [69 Cal.Rptr.3d 876].

Secondary Sources 1 Witkin, California Evidence (4th ed. 2000) Presentation, §§ 292–314. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.22[3][e], Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b], 85.03[2][b] (Matthew Bender). 5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 105, Executive Clemency, § 105.04[3] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 318: Prior Statements as Evidence.

You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statement[s] in two ways: 1 To evaluate whether the witness's testimony in court is believable; AND 2 As evidence that the information in (that/those) earlier statement[s] is true.

BENCH NOTES

Instructional Duty The court has no sua sponte duty to give this instruction. (People v. Griffin (1988) 46 Cal.3d 1011, 1026 [251 Cal.Rptr. 643, 761 P.2d 103].) Use this instruction when a testifying witness has been confronted with a prior inconsistent statement. If prior testimony of an unavailable witness was impeached with a prior inconsistent statement, use CALCRIM No. 319, Prior Statements of Unavailable Witness. (People v. Williams (1976) 16 Cal.3d 663, 668–669 [128 Cal.Rptr. 888, 547 P.2d 1000].) If the prior statements were obtained by a peace officer in violation of Miranda, give CALCRIM No. 356, Miranda-Defective Statements.

AUTHORITY

Instructional Requirements. California v. Green (1970) 399 U.S. 149, 158 [90 S.Ct. 1930, 26 L.Ed.2d 489]; People v. Cannady (1972) 8 Cal.3d 379, 385–386 [105 Cal.Rptr. 129, 503 P.2d 585]; see Evid. Code, §§ 770, 791, 1235, 1236.

This Instruction Upheld. People v. Tuggles (2009) 179 Cal.App.4th 339, 363-367 [100 Cal.Rptr.3d 820]; People v. Golde (2008) 163 Cal.App.4th 101, 120 [77 Cal.Rptr.3d 120].

Secondary Sources 1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 157. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.22[3][b], Ch. 83, Evidence, § 83.13[3][e], [f], Ch. 85, Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 333: Opinion Testimony of Lay Witness.

(A witness/Witnesses)[, who (was/were) not testifying as [an] expert[s],] gave (his/her/their) opinion[s] during the trial. You may but are not required to accept (that/those) opinion[s] as true or correct. You may give the opinion[s] whatever weight you think appropriate. Consider the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

BENCH NOTES

Instructional Duty Give this instruction on request when a lay witness gives opinion testimony. Give the bracketed phrase “who was not testifying as an expert” if an expert witness also testified in the case. Related Instructions CALCRIM No. 332, Expert Witness Testimony. CALCRIM No. 1860, Owner's Opinion of Value.

AUTHORITY

Opinion Testimony. Evid. Code, §§ 800, 802.

Opinion Testimony to Prove Character. Evid. Code, § 1100.

Jury Must Decide What Weight to Give Lay Opinion. See People v. Pena (1977) 68 Cal.App.3d 100, 102–103 [135 Cal.Rptr. 602].

This Instruction Upheld. People v. Golde (2008) 163 Cal.App.4th 101, 120 [77 Cal.Rptr.3d 120].

Secondary Sources 1 Witkin, California Evidence (4th ed. 2000) Opinion Evidence, §§ 3–25. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.22[3][d], Ch. 83, Evidence, § 83.11 (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 350: Character of Defendant.

You have heard character testimony that the defendant (is a <insert character trait relevant to crime[s] committed> person/ [or] has a good reputation for <insert character trait relevant to crime[s] committed> in the community where (he/she) lives or works). Evidence of the defendant’s character for <insert character trait relevant to crime[s] committed> can by itself create a reasonable doubt [whether the defendant committed <insert name[s] of alleged offenses[s] and count[s], e.g., battery, as charged in Count 1>]. However, evidence of the defendant’s good character may be countered by evidence of (his/her) bad character for the same trait. You must decide the meaning and importance of the character evidence. [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.] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt.

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, 489–490 [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 [266 P.2d 38] [character evidence may be sufficient to create reasonable doubt of guilt]; People v. Wilson (1913) 23 Cal.App. 513, 523–524 [138 P. 971] [court erred in failing to give requested instruction or any instruction on character evidence].)

AUTHORITY

Instructional Requirements. People v. Bell (1875) 49 Cal. 485, 489–490; People v. Wilson (1913) 23 Cal.App. 513, 523–524 [138 P. 971]; People v. Jones (1954) 42 Cal.2d 219, 222 [266 P.2d 38].

Character Evidence Must Be Relevant to Offense Charged. People v. Taylor (1986) 180 Cal.App.3d 622, 629 [225 Cal.Rptr. 733].

Admissibility. Evid. Code, §§ 1100–1102.

Secondary Sources 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 53. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.22[3][d], [e][ii], Ch. 83, Evidence, § 83.12[1] (Matthew Bender).

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 reputation. (People v. Castillo (1935) 5 Cal.App.2d 194, 198 [42 P.2d 682].) 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 [209 P. 88] [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 [287 P.2d 752].)

Judicial Council of California Criminal Jury Instruction 351: Cross-Examination of Character Witness.

The attorney for the People 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 the meaning and importance of (the/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 [196 Cal.Rptr. 412] [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 [196 Cal.Rptr. 412]; People v. Eli (1967) 66 Cal.2d 63, 79 [56 Cal.Rptr. 916, 424 P.2d 356].

Secondary Sources 3 Witkin, California Evidence (4th ed. 2000) Presentation, § 243. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.22[3][d], Ch. 85, Submission to Jury and Verdict, § 85.02[2][b], Ch. 87, Death Penalty, § 87.23[5] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 355: Defendant's Right Not to Testify.

A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.

BENCH NOTES

Instructional Duty This instruction should only be given on request. (Carter v. Kentucky (1981) 450 U.S. 288, 300 [101 S.Ct. 1112, 67 L.Ed.2d 241]; People v. Evans (1998) 62 Cal.App.4th 186, 191 [72 Cal.Rptr.2d 543].) The court has no sua sponte duty to seek a personal waiver of the instruction from the defendant. (People v. Towey (2001) 92 Cal.App.4th 880, 884 [112 Cal.Rptr.2d 326].) The United States Supreme Court has held that the court may give this instruction over the defendant's objection (Lakeside v. Oregon (1978) 435 U.S. 333, 340-341 [98 S.Ct. 1091, 55 L.Ed.2d 319]), but as a matter of state judicial policy, the California Supreme Court has found otherwise. (People v. Roberts (1992) 2 Cal.4th 271, 314 [6 Cal.Rptr.2d 276, 826 P.2d 274] [“[T]he purpose of the instruction is to protect the defendant, and if the defendant does not want it given the trial court should accede to that request, notwithstanding the lack of a constitutional requirement to do so.”].)

AUTHORITY

Instructional Requirements. People v. Lewis (1990) 50 Cal.3d 262, 282 [266 Cal.Rptr. 834, 786 P.2d 892] [no sua sponte duty to instruct].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191–1192 [67 Cal.Rptr.3d 871].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 642, 658. 2 Witkin, California Evidence (4th ed. 2000) Witnesses, § 439. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80, Defendant's Trial Rights, § 80.08, Ch. 85, Submission to Jury and Verdict, §§ 85.02[1A][a], 85.04[2][b] (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 358: Evidence of Defendant's Statements.

You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give this instruction when there is evidence of an out-of-court oral statement by the defendant. In addition, the court has a sua sponte duty to give the bracketed cautionary instruction when there is evidence of an incriminating out-of-court oral statement made by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 455–456 [99 Cal.Rptr. 313, 492 P.2d 1].) An exception is that in the penalty phase of a capital trial, the bracketed paragraph should be given only if the defense requests it. (People v. Livaditis (1992) 2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831 P.2d 297].) The bracketed cautionary instruction is not required when the defendant's incriminating statements are written or tape-recorded. (People v. Gardner (1961) 195 Cal.App.2d 829, 833 [16 Cal.Rptr. 256]; People v. Hines (1964) 61 Cal.2d 164, 173 [37 Cal.Rptr. 622, 390 P.2d 398], disapproved on other grounds in People v. Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40 [175 Cal.Rptr. 738, 631 P.2d 446]; People v. Scherr (1969) 272 Cal.App.2d 165, 172 [77 Cal.Rptr. 35]; People v. Slaughter (2002) 27 Cal.4th 1187, 1200 [120 Cal.Rptr.2d 477, 47 P.3d 262] [admonition to view non-recorded statements with caution applies only to a defendant's incriminating statements].) If the jury heard both inculpatory and exculpatory, or only inculpatory, statements attributed to the defendant, give the bracketed paragraph. If the jury heard only exculpatory statements by the defendant, do not give the bracketed paragraph. When a defendant's statement is a verbal act, as in conspiracy cases, this instruction applies. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 [249 Cal.Rptr. 71, 756 P.2d 795]; People v. Ramirez (1974) 40 Cal.App.3d 347, 352 [114 Cal.Rptr. 916]; see also, e.g., Peabody v. Phelps (1858) 9 Cal. 213, 229 [similar, in civil cases]; but see People v. Zichko (2004) 118 Cal.App.4th 1055, 1057 [13 Cal.Rptr.3d 509] [no sua sponte duty to instruct with CALJIC 2.71 in criminal threat case because “truth” of substance of the threat was not relevant and instructing jury to view defendant's statement with caution could suggest that exercise of “caution” supplanted need for finding guilt beyond a reasonable doubt].) When a defendant's statement is an element of the crime, as in conspiracy or criminal threats (Pen. Code, § 422), this instruction does not apply. (People v. Zichko (2004) 118 Cal.App.4th 1055, 1057 [13 Cal.Rptr.3d 509].) Related Instructions If out-of-court oral statements made by the defendant are prominent pieces of evidence in the trial, then CALCRIM No. 359, Corpus Delicti: Independent Evidence of a Charged Crime, may also have to be given together with the bracketed cautionary instruction.

AUTHORITY

Instructional Requirements. People v. Beagle (1972) 6 Cal.3d 441, 455–456 [99 Cal.Rptr. 313, 492 P.2d 1]; People v. Livaditis (1992) 2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831 P.2d 297].

Secondary Sources 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 614, 641, 650. 1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 51. 3 Witkin, California Evidence (4th ed. 2000) Presentation, § 113. 2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30, Confessions and Admissions, § 30.57 (Matthew Bender).

Judicial Council of California Criminal Jury Instruction 359: Corpus Delicti: Independent Evidence of a Charged Crime.

The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone. You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt. Instructional Duty The court has a sua sponte duty to instruct on corpus delicti whenever an accused's extrajudicial statements form part of the prosecution's evidence. (People v. Howk (1961) 56 Cal.2d 687, 707 [16 Cal.Rptr. 370, 365 P.2d 426].) The corpus delicti cannot be proved by statements made before or after the crime, but can be proved by statements made during the crime. (People v. Carpenter (1997) 15 Cal.4th 312, 394 [63 Cal.Rptr.2d 1, 935 P.2d 708].) Give the bracketed language in the first paragraph if the court will be instructing on lesser included offenses. Related Instructions Since the corpus delicti instruction concerns statements of guilt by the defendant, this instruction must always be given along with CALCRIM No. 358, Evidence of Defendant's Statements. If the statements are reported oral statements, the bracketed cautionary paragraph in CALCRIM No. 358 must also be given.

AUTHORITY

Instructional Requirements. People v. Ray (1996) 13 Cal.4th 313, 342 [52 Cal.Rptr.2d 296, 914 P.2d 846]; People v. Jennings (1991) 53 Cal.3d 334, 368 [279 Cal.Rptr. 780, 807 P.2d 1009]; People v. Howk (1961) 56 Cal.2d 687, 707 [16 Cal.Rptr. 370, 365 P.2d 426].

Burden of Proof. People v. Lara (1994) 30 Cal.App.4th 658, 676.

This Instruction Correctly States the Law. People v. Reyes (2007) 151 Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777].

Corpus Delicti Rule Does Not Apply Generally to All Uncharged Acts. People v. Davis (2008) 168 Cal.App.4th 617, 636 [86 Cal.Rptr.3d 55].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 45–52. 2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30, Confessions and Admissions, §§ 30.04[2], 30.57 (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[2][c], Ch. 87, Death Penalty, § 87.13[17][e] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.01 (Matthew Bender).

COMMENTARY

Harm Caused by Criminal Conduct The instruction states that the other evidence need only “be enough to support a reasonable inference that someone's criminal conduct caused an injury, loss, or harm.” This is based in part on People v. Alvarez (2002) 27 Cal.4th 1161, 1171 [119 Cal.Rptr.2d 903, 46 P.3d 372], in which the court stated that “[t]here is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency.” (Citing People v. Jones (1998) 17 Cal.4th 279, 303 [70 Cal.Rptr.2d 793, 949 P.2d 890].) Scope of Corpus Delicti The following are not elements of a crime and need not be proved by independent evidence: the degree of the crime charged (People v. Cooper (1960) 53 Cal.2d 755, 765 [3 Cal.Rptr. 148, 349 P.2d 964]), the identity of the perpetrator (People v. Westfall (1961) 198 Cal.App.2d 598, 601 [18 Cal.Rptr. 356]), elements of the underlying felony when the defendant is charged with felony murder (People v. Cantrell (1973) 8 Cal.3d 672, 680–681 [105 Cal.Rptr. 792, 504 P.2d 1256], disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324 [149 Cal.Rptr. 265, 583 P.2d 1308] and People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]), special circumstances when the defendant is charged with a felony-based special circumstance murder as listed in Penal Code section 190.2(a)(17) (Pen. Code, § 190.41; see People v. Ray (1996) 13 Cal.4th 313, 341, fn. 13 [52 Cal.Rptr.2d 296, 914 P.2d 846]), the knowledge and intent required for aider-abettor liability (People v. Gutierrez (2002) 28 Cal.4th 1083, 1128–1129 [124 Cal.Rptr.2d 373, 52 P.3d 572]; People v. Ott (1978) 84 Cal.App.3d 118, 131 [148 Cal.Rptr. 479]), or facts necessary for a sentencing enhancement (see People v. Shoemake (1993) 16 Cal.App.4th 243, 252–256 [20 Cal.Rptr.2d 36]).

RELATED ISSUES

Truth-in-Evidence Initiative The “truth-in-evidence” provision of the California Constitution abrogates the corpus delicti rule insofar as it restricts the admissibility of incriminatory extrajudicial statements by an accused. (People v. Alvarez (2002) 27 Cal.4th 1161, 1173–1174 [119 Cal.Rptr.2d 903, 46 P.3d 372]; see Cal. Const., art. I, § 28(d) [Proposition 8 of the June 8, 1982 General Election].) The constitutional provision, however, does not eliminate the rule insofar as it prohibits conviction when the only evidence that the crime was committed is the defendant's own statements outside of court. Thus, the provision does not affect the rule to the extent it requires a jury instruction that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements. (People v. Alvarez, supra, 27 Cal.4th at p. 1180.)

Judicial Council of California Criminal Jury Instruction 370: Motive.

The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.

BENCH NOTES

Instructional Duty The court does not have a sua sponte duty to instruct on motive. (People v. Romo (1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015] [not error to refuse instruction on motive].) Do not give this instruction if motive is an element of the crime charged. (See, e.g., CALCRIM No. 1122, Annoying or Molesting a Child.)

AUTHORITY

Instructional Requirements. People v. Romo (1975) 14 Cal.3d 189, 195–196 [121 Cal.Rptr. 111, 534 P.2d 1015]; People v. Young (1970) 9 Cal.App.3d 106, 110 [87 Cal.Rptr. 767].

Jury May Consider Motive. People v. Brown (1900) 130 Cal. 591, 594 [62 P. 1072]; People v. Gonzales (1948) 87 Cal.App.2d 867, 877–878 [198 P.2d 81].

Proof of Presence or Absence of Motive Not Required. People v. Daly (1992) 8 Cal.App.4th 47, 59 [10 Cal.Rptr.2d 21]; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017–1018 [80 Cal.Rptr.2d 676].

This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1192–1193 [67 Cal.Rptr.3d 871].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 4. 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 249. 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 119. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).

RELATED ISSUES

Entrapment Defense The court should not instruct on motive if the defendant admits his guilt for the substantive crime and presents an entrapment defense, because in that instance his or her commission of the crime would not be an issue and motive would be irrelevant. (See People v. Martinez (1984) 157 Cal.App.3d 660, 669 [203 Cal.Rptr. 833]; People v. Lee (1990) 219 Cal.App.3d 829, 841 [268 Cal.Rptr. 595].) No Conflict With Other Instructions Motive, intent, and malice are separate and distinct mental states. Giving a motive instruction does not conflict with intent and malice instructions. (People v. Hillhouse (2002) 27 Cal.4th 469, 503–504 [117 Cal.Rptr.2d 45, 40 P.3d 754] [motive describes the reason a person chooses to commit a crime]; People v. Snead (1993) 20 Cal.App.4th 1088, 1098 [24 Cal.Rptr.2d 922].) Similarly, a motive instruction that focuses on guilt does not conflict with a special circumstance instruction, which the jury is directed to find true or not true. (People v. Heishman (1988) 45 Cal.3d 147, 178 [246 Cal.Rptr. 673, 753 P.2d 629] [defendant argued motive to prevent victim from testifying was at core of special circumstance].) A torture murder instruction that requires an intent to cause cruel pain or suffering for the purpose of revenge, extortion, or any sadistic purpose also does not conflict with the motive instruction. The torture murder instruction does not elevate motive to the status of an element of the crime. It simply makes explicit the treatment of motive as an element of proof in torture murder cases. (People v. Lynn (1984) 159 Cal.App.3d 715, 727–728 [206 Cal.Rptr. 181].)

Judicial Council of California Criminal Jury Instruction 3470: Right to Self-Defense or Defense of Another (Non-Homicide).

Self-defense is a defense to <insert list of pertinent crimes charged>. The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: 1 The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; 2 The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3 The defendant used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was (imminent danger of bodily injury to (himself/herself/ [or] someone else)/[or] an imminent danger that (he/she/[or] someone else) would be touched unlawfully). Defendant's belief must have been reasonable and (he/she) must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/ [or] defense of another). When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.] [The defendant's belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.] [If you find that <insert name of victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.] [If you find that the defendant knew that <insert name of victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.] [Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.] [If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name of victim>, you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).] [A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ <insert crime>) has passed. This is so even if safety could have been achieved by retreating.] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of <insert crime(s) charged>.

BENCH NOTES

Instructional Duty The court must instruct on a defense when the defendant requests it and there is substantial evidence supporting the defense. The court has a sua sponte duty to instruct on a defense if there is substantial evidence supporting it and either the defendant is relying on it or it is not inconsistent with the defendant's theory of the case. When the court concludes that the defense is supported by substantial evidence and is inconsistent with the defendant's theory of the case, however, it should ascertain whether defendant wishes instruction on this alternate theory. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111]; People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) Substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983 [38 Cal.Rptr.3d 624, 127 P.3d 40].) On defense request and when supported by sufficient evidence, the court must instruct that the jury may consider the effect of “antecedent threats and assaults against the defendant on the reasonableness of defendant's conduct.” (People v. Garvin (2003) 110 Cal.App.4th 484, 488 [1 Cal.Rptr.3d 774].) The court must also instruct that the jury may consider previous threats or assaults by the aggressor against someone else or threats received by the defendant from a third party that the defendant reasonably associated with the aggressor. (See People v. Pena (1984) 151 Cal.App.3d 462, 475 [198 Cal.Rptr. 819]; People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1068 [56 Cal.Rptr.2d 133, 920 P.2d 1337]; see also CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.) Related Instructions CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another. CALCRIM Nos. 3471– 3477, Defense Instructions: Defense of Self, Another, Property. CALCRIM No. 851, Testimony on Intimate Partner Battering and Its Effects: Offered by the Defense. CALCRIM No. 2514, Possession of Firearm by Person Prohibited by Statute: Self-Defense.

AUTHORITY

Instructional Requirements. People v. Moody (1943) 62 Cal.App.2d 18 [143 P.2d 978]; People v. Myers (1998) 61 Cal.App.4th 328, 335, 336 [71 Cal.Rptr.2d 518].

Lawful Resistance. Pen. Code, §§ 692, 693, 694; Civ. Code, § 50; see also People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d 518].

Burden of Proof. Pen. Code, § 189.5; People v. Banks (1976) 67 Cal.App.3d 379, 383–384 [137 Cal.Rptr. 652].

Elements. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d 142, 921 P.2d 1].

Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167] (overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [56 Cal.Rptr.2d 142, 921 P.2d 1]).

No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 494 [237 P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51].

Temporary Possession of Firearm by Felon in Self-Defense. People v. King (1978) 22 Cal.3d 12, 24 [148 Cal.Rptr. 409, 582 P.2d 1000].

Duty to Retreat Limited to Felon in Possession Cases. People v. Rhodes (2005) 129 Cal.App.4th 1339, 1343–1346 [29 Cal.Rptr.3d 226].

Inmate Self-Defense. People v. Saavedra (2007) 156 Cal.App.4th 561 [67 Cal.Rptr.3d 403].

Reasonable Belief. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d 142, 921 P.2d 1]; People v. Clark (1982) 130 Cal.App.3d 371, 377 [181 Cal.Rptr. 682].

Secondary Sources 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 65, 66, 69, 70. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11, 73.12 (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124, Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).

RELATED ISSUES

Brandishing Weapon in Defense of Another The defense of others is a defense to a charge of brandishing a weapon under Penal Code section 417(a)(2). (People v. Kirk (1986) 192 Cal.App.3d Supp. 15, 19 [238 Cal.Rptr. 42].) Reasonable Person Standard Not Modified by Evidence of Mental Impairment In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the court rejected the argument that the reasonable person standard for self-defense should be the standard of a mentally ill person like the defendant. “The common law does not take account of a person's mental capacity when determining whether he has acted as the reasonable person would have acted. The law holds ‘the mentally deranged or insane defendant accountable for his negligence as if the person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984) § 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.) See also the Related Issues section of CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.

Judicial Council of California Criminal Jury Instruction 3590: Final Instruction on Discharge of Jury.

You have now completed your jury service in this case. On behalf of all the judges of the court, please accept my thanks for your time and effort. Now that the case is over, you may choose whether or not to discuss the case and your deliberations with anyone. [I remind you that under California law, you must wait at least 90 days before negotiating or agreeing to accept any payment for information about the case.] Let me tell you about some rules the law puts in place for your convenience and protection. The lawyers in this case, the defendant[s], or their representatives may now talk to you about the case, including your deliberations or verdict. Those discussions must occur at a reasonable time and place and with your consent. Please tell me immediately if anyone unreasonably contacts you without your consent. Anyone who violates these rules is violating a court order and may be fined. [I order that the court's record of personal juror identifying information, including names, addresses, and telephone numbers, be sealed until further order of this court. If, in the future, the court is asked to decide whether this information will be released, notice will be sent to any juror whose information is involved. You may oppose the release of this information and ask that any hearing on the release be closed to the public. The court will decide whether and under what conditions any information may be disclosed.] Again, thank you for your service. You are now excused.

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give this instruction on discharge of the jury. (Code Civ. Proc., § 206.) The court may give the bracketed portions at its discretion. (Id., § 237.) Code of Civil Procedure section 237(a)(2) requires the court to seal the personal identifying information of jurors in a criminal case following the recording of the jury's verdict. Access to the sealed records may be permitted on a showing of good cause in a petition to the court, as provided by subdivisions (b) through (d). Section 14 of the California Standards of Judicial Administration states that “it is appropriate for the trial judge to thank jurors for their public service, but the judge's comments should not include praise or criticism of the verdict or the failure to reach a verdict.”

AUTHORITY

Statutory Authority. Code Civ. Proc., §§ 206, 237.

Jury Tampering. Pen. Code, § 116.5.

Secondary Sources 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.05[1], [4][c] (Matthew Bender). *California Jury Instructions (2013). WestLaw Next. Retrieved March 6, 2013, from http://next.westlaw.com

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