Instruction on Lesser Included Offenses Over Defense Objection; Instruction on Bias of Police Witness Due to Potential Receipt of Forfeiture Proceeds; Pinpoint Instruction Strategies

    Instruction on Lesser Included Offenses Over Defense Objection. People v. Eilers (91) 231 CA3d 288, 294, fn 4, 282 CR 252 held that if the evidence supports a lesser included offense instruction, it must be given -- even over defense objection. Other cases, however, have suggested that a defendant may block inconsistent defense instructions. (See People v. Bobb (89) 207 CA3d 88, 91: "The trial court has a duty to instruct on necessarily included offenses which are not inconsistent with the defense;" People v. Hooper (86) 181 CA3d 1174, 1183: Only "when an instruction on a lesser included offense would be inconsistent with the defendant's theory of defense is the failure to instruct on a lesser included offense proper;" People v. Helton (84) 182 CA3d 1141, 1146: "It is obvious that the court has no duty to force instructions on an unwilling defendant;" People v. Allums (75) 47 CA3d 654, 662-63) (same); and People v. McCoy (84) 150 CA3d 705, 708 (quoting the rule).)

    People v. Barton (95)12 C4th 186, 201 [47 CR2d 569] held that a lesser included instruction may be given over defense objection even if the lesser was uncharged and inconsistent with the defense.

    Instruction on Bias of Police Witness Due to Potential Receipt of Forfeiture Proceeds. Often a police officer "expert" will testify that the defendant possessed drugs for the purposes of sale. In such cases, the defendant may wish to request an instruction informing the jury that conviction of possession for sale permits forfeiture of the defendant's property and over 75% of the proceeds may go to the local police agency which participated in the seizure. (H&S Code § 114895(b)(2).) Such an instruction is warranted because the police officer "expert" may have a bias or motive in seeing that the defendant is convicted of possession for sale as opposed to simple possession which does not result in forfeiture. People v. Cardwell (CA5) F014847), an unpublished opinion, recently held that such an instruction should be given upon request.

    Pinpoint Instruction Strategies. A pinpoint instruction is improperly argumentative if it directs the jury's attention to specific evidence and "impl[ies] the conclusion to be drawn from that evidence." (.) The distinction between an improperly argumentative instruction and a proper pinpoint instruction is illustrated in recent decisions dealing with defense challenges to the consciousness of guilt instructions. For example, in People v. Randle (1992) 8 CA4th 1023, the court granted the D.A.'s request to tailor CJ 2.06 (Defendant's Efforts to Suppress Evidence) to refer to "change of appearance" as a factor which may be indicative of consciousness of guilt. The Court of Appeal held that this was a proper pinpoint instruction because it referred only to "the generic type of consciousness of guilt disclosed by the evidence." (Ibid.) The court noted that "[a] contrary conclusion might have been reached if the trial court had specifically directed the jury's attention to the change of hairstyle or missing shirt." (Ibid.) (See also People v. Fitzpatrick (92) 2 CA4th 1285, 1297, 3 CR2d 808: CJ 2.06 proper; People v. Bacigalupo (91) 1 C4th 103, 127-128, 2 CR2d 335: CJ 2.03 proper.)

    Accordingly, a pinpoint instruction is not argumentative so long as it draws the jury's attention to "generic" matters disclosed by the evidence. For example, CJ 2.92 lists generic factors (e.g., opportunity to observe, stress, race, etc.) which the jury may consider in evaluating eyewitness testimony. Similarly, an instruction which references other relevant factors for the jury to consider with respect to identification or any other material issue should be considered a proper pinpoint instruction. (See e.g., People v. Frank (90) 51 C3d 718, 739, 274 CR 372: recognizing right to specification of factors not covered by CJ 2.92; People v. Fernandez (90) 219 CA3d 1379, 1384, 269 CR 116: jury may be instructed to consider the failure of the eyewitness to attend a pretrial lineup.)

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