MISCELLANEOUS INSTRUCTION IDEAS:

Expert Witness: Consideration Of The Foundation Of The Opinion; Exercise Of Privilege: No Presumption As To Any Matter At Issue; Mental Competence: Specification Of Standard; Vehicular Manslaughter: Deletion Of Inherently Dangerous Act From Instruction On PC 192(c)(1); Basic Speed Law: Deletion Of "Inherently Dangerous To Human Life" Language; Appellate Tidbits

Note: All References to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing.  Go to: http://jamespublishing.com/books/fc.htm

*Add to CJ 2.80:

Points and Authorities

    CJ 2.80 fails to elaborate upon how the jury should consider the foundational aspects of the expert's opinion in evaluating the weight and credibility of the expert testimony. It is well established that "... expert opinions, even though uncontradicted, are worth no more than the reasons and factual data upon which they are based." (Griffith v. County Of Los Angeles (68) 267 CA2d 837, 847 [73 CR 773]; see also, People v. Bassett (69) 71 C2d 153, 166 [77 CR 790]; Sears Roebuck & Co. v. Walls (60) 178 CA2d 284, 289 [2 CR 847].) "The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed. [Citations]." (Pacific Gas & Electric Co. v. Zuckerman (87) 189 CA3d 1113, 1135 [234 CR 630].)

    Accordingly, the first paragraph of the above proposed instruction, which is taken from BAJI 2.40, should be added to CJ 2.80. Moreover, it is also well established that when an expert relies on information made known to him or her by others, the reasonableness of the expert's reliance upon that information is "a foundational question affecting the credibility and authority of the expert's opinion." (Mosesian v. Pennwalt Corp. (87) 191 CA3d 851, 861 [236 CR 778]; see also, Pfingsten v. Westenhaver (52) 39 C2d 12, 20 [244 P2d 395]; In re Marriage of Sheldon (81) 124 CA3d 371, 384 [177 CR 380] [determination of credibility of expert's opinion requires consideration of the reasonableness of underlying factors used in forming that opinion].) "Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations]." (Pacific Gas & Electric Co. v. Zuckerman, 189 CA3d at 1135.) Accordingly, the second paragraph of the above proposed instruction should also be added to CJ 2.80.

*Modify CJ 2.25 as follows [added language is capitalized; deleted language is between <<>>]:

    EC 913(b) requires that the jury be instructed, upon request, that "no presumption arises because of the exercise of the privilegeand that the jury may not draw any inference therefrom as to the credibilityof the witness or as to any matter at issue in the proceeding." [Emphasis added.]

    The above instruction modifies CJ 2.25 to fully comply with the above statutory requirement.

*Modify 1st element of CJ 4.10 to provide as follows [added language is capitalized]:

Points and Authorities

    In Dusky v. U.S. (60) 362 US 402, 402 [4 LEd2d 824; 80 SCt 788], the court held that "the 'test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational, as well as factual, understanding of the proceedings against him.’" CJ 4.10 is based on PC 1367, which does not expressly include the Dusky requirement of an actual rational, as well as factual, understanding of the proceedings. While it has been suggested that the language of PC 1367 is sufficient to convey the Dusky requirements to the jury (see James H. v. Superior Court (78) 77 CA3d 169, 177 [143 CR 398]), express instruction on the Dusky requirement is necessary to assure that the jury makes the requisite finding that the defendant actually has a sufficient understanding of the proceedings. Failure to require a jury finding of the elemental prerequisites for imposition of criminal liability implicates the defendant's state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See generally, >PG VII(C).)

*Modify ¶ 3 of CJ 8.90 to provide as follows [added language is capitalized; deleted language is between <<>>]:

Points and Authorities

    When the defendant is charged only under the "unlawful act" prong of PC 192(c)(1), the "inherently dangerous to human life" language of CJ 8.90 and CJ 8.97 should be deleted. (People v. Bryant (95) 36 CA4th 1064, 1072, fn 11 [43 CR2d 20].) In cases in which a defendant is charged with committing a "lawful act" in an "unlawful manner," the alterative language of CJ 8.90 may be used. This language does not include the phrase "inherently dangerous to human life ...." (Ibid.)

*Modify CJ 8.97 ¶ 3 to provide as follows [deleted language is between <<>>]:

Points and Authorities

    In cases where the defendant is charged only under the "unlawful act" prong of PC 192(c)(1), the phrase "inherently dangerous to human life [and/or] safety" from CJ 8.97 should be deleted. (People v. Bryant (95) 36 CA4th 1064, 1072, fn 11 [43 CR2d 20].)

Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence: The evidence sufficient to require instruction sua sponte is governed by principles of substantial evidence. If a defendant's theory of the case is supported by substantial evidence, the court must instruct on the theory even if the evidence is not credible. (People v. Burnham (86) 176 CA3d 1134, 1143 [222 CR 630]; see also, People v. Glenn (91) 229 CA3d 1461, 1465 [280 CR 609].) "The trial court should not determine the credibility of witnesses, including the defendant." (Mandatory Criminal Jury Instructions Handbook (1995 CJER) § 1.3, pp. 7-8.) Hence, if there is evidence in support of the instruction, the instruction must be given regardless of the source of the evidence. (See e.g., People v. Castillo (87) 193 CA3d 119, 125-26 [238 CR 207]; see also, U.S v. Hairston (9th Cir. 1995) 64 F3d 491.)

    "Doubt as to the sufficiency of the evidence to require a particular instruction should be resolved in the defendant's favor." (Mandatory Criminal Jury Instructions Handbook (1995 CJER) § 1.3, p. 8; see also, People v. Wilson (67) 66 C2d 749, 762, [59 CR 156].)

Defendant Need Not Testify To Require Instruction On Defense Theory: An instruction must be given on the defense theory of the case even when the defendant doesn't testify and the only evidence to support the theory is circumstantial. (See People v. Anderson (83) 144 CA3d 55, 61-62 [192 CR 409]; see also, People v. Leon (92) 10 CA4th 815, 824 [12 CR2d 825].)

Reversal Per Se Applies Even If Evidence "Uncontroverted": The failure to instruct upon an element of the charge should not be held harmless even if the evidence as to that element is "uncontroverted." It is well-settled that the jury need not accept the truth of uncontroverted testimony on a material issue if it finds that testimony not to be credible. (See generally, 3 Witkin, Cal. Evid. (3d ed. 1986) Introduction of Evidence at Trial, §§ 1751 - 1756, pp. 1705-11.) Hence, even if the evidence is arguably uncontroverted, the reviewing court may not conclude as a matter of law that the jury made a particular finding with respect to an essential element of the offense if the instructions did not call the materiality of this evidence to the jury's attention so that the jury could perform its function of determining the credibility of the uncontroverted evidence. (See Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182, 190; 113 SCt 2078]; Harmon v. Marshall (9th Cir. 1995) 57 F3d 763, 764-65.)

Cumulative Prejudice: The combined effect of instructional errors and/or evidentiary errors may create cumulative prejudice. (See People v. McGreen (80) 107 CA3d 504, 519-20 [166 CR 360]; People v. Buffum (53) 40 C2d 709, 726 [256 P2d 317]; People v. Ford (64) 60 C2d 772, 798 [36 CR 620].)

    When errors of federal constitutional magnitude combine with non-constitutional errors, the combined effect of the errors should be reviewed under a Chapman standard. (People v. Williams (71) 22 CA3d 34, 58-59 [99 CR 103]; see also, In re Rodriguez (81) 119 CA3d 457, 469-70 [174 CR 67].) Cumulative errors may so infect "the trial with unfairness as to make the resulting conviction a denial of due process." (Donnelly v. DeChristoforo (74) 416 US 637, 642-43 [40 LEd2d 431; 94 SCt 1868]; Greer v. Miller (87) 483 US 756, 764 [97 LEd2d 618; 107 SCt 3102].)

Effect Of Argument On Instructional Error: "Counsel's argument was merely that -- argument -- unless and until a ratifying instruction from the trial court dignified it with the force of law. As the United States Supreme Court has well observed, 'It is obvious that under any system of jury trials, the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.’ [Citations.] The omission of a critical charge may, of course, prove to be just as instrumental to the outcome." (Soule v. General Motors Corp. (94) 8 C4th 548, 586 [34 CR2d 607] [emphasis in original], Arabian, J., concurring and dissenting.)

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