modified instruction in California

2025(People v. Santana, supra, 56 Cal.4th at p. 1011 ; see People v. Dayan (1995) 34 Cal.App.4th 707, 717 [“Defendant cites no authority for the startling proposition that if a court’s instruction erroneously adds an element to an offense, a conviction must be reversed when there is insufficient evidence to support the added, but legally unnecessary, element”].) However, as noted by Cowart, the instruction stated that hematoma of the left ear is a serious injury.

2013(See People v. Dayan (1995) 34 Cal.App.4th 707, 717 [ 40 Cal.Rptr.2d 391 ] [“Defendant cites no authority for the startling proposition that if a court’s instruction erroneously adds an element to an offense, a conviction must be reversed when there is insufficient evidence to support the added, but legally unnecessary, element.”].) However, the instruction explained that a serious bodily injury “may include a gunshot wound,” which raises the question whether the instruction was argumentative.

2015The modified instruction given in Villatoro told the jury that if it found that the defendant committed one of the charged rape or sodomy offenses, it could find that he “ ‘was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged.’ ” ( Villatoro, supra, at p. 1167 .) The instruction specified, however, that such a conclusion would be “ ‘only one factor to consider along with all the other evidence’ ” and was “ ‘not sufficient by itself to

2015The modified instruction given in Villatoro told the jury that if it found that the defendant committed one of the charged rape or sodomy offenses, it could find that he “ ‘was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged.’ ” ( Villatoro, supra, at p. 1167 .) The instruction specified, however, that such a conclusion would be “ ‘only one factor to consider along with all the other evidence’ ” and was “ ‘not sufficient by itself to

2016He claims the modified instruction allowed the jury to convict based solely on a "threat," rather than "force or violence." The People contend Matthews forfeited his challenge by failing to object below. " 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citations.] But that rule does not apply when, as here, the trial court gives an instruction that is an incorrect statement of the law." (People v. Hudson (2006) 38 Cal.4t

2013The Attorney General argues Mason forfeited his challenge by failing to object or seek a modified instruction at trial. “ ‘[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Mejia (2012) 211 Cal.App.4th 586, 617 [ 149 Cal.Rptr.3d 815 ]; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [ 44 Cal.Rptr.3d 632 , 136 P.3d 168 ].) But no forfeiture will be found where, as here, the court’s instruction was an incorrec

2024(People v. Hardy (2018) 5 Cal.5th 56, 99 [“Instructions on provocation are pinpoint instructions that need not be given sua sponte but only on request”].) Because Romero did not request the instruction, he forfeited the argument on appeal.

2021The People are correct. “[A] defendant may raise for the 20 first time on appeal instructional error affecting his or her substantial rights. [Citations.] But ‘[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.’ ” (People v. Buenrostro (2018) 6 Cal.5th 367, 428 ; Accord, People v. Hardy (2018) 5 Cal.5th 56, 91 ; See also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [aiding and abetting instruction].) “ ‘[B]ecause the instruction given was correct, it wa

2021(Compare CALJIC No. 3.01 with McCoy, supra, 25 Cal.4th at p. 1118 ; see Chavez, supra, 118 Cal.App.4th 379, 387 .)7 Anticipating this result, appellant contends that the modified instruction is ambiguous because it contemplates a conviction for a killing “whether intentional, unintentional or accidental.” He asserts that the word “unintentional” as one of three options for an unlawful 7 It is for this reason that the Fifth District held that “the drive-by- shooting clause added to section 189 . . . is not an enumerated felony for purposes of the felony-murder rule.” (Chavez, supra, 118 Cal.App

2021(Compare CALJIC No. 3.01 with McCoy, supra, 25 Cal.4th at p. 1118 ; see Chavez, supra, 118 Cal.App.4th 379, 387 .)7 Anticipating this result, appellant contends that the modified instruction is ambiguous because it contemplates a conviction for a killing “whether intentional, unintentional or accidental.” He asserts that the word “unintentional” as one of three options for an unlawful 7 It is for this reason that the Fifth District held that “the drive-by- shooting clause added to section 189 . . . is not an enumerated felony for purposes of the felony-murder rule.” (Chavez, supra, 118 Cal.App

2017(See, e.g., People v. Brasure, supra, 42 Cal.4th at pp. 1061-1064, 71 Cal.Rptr.3d 675 , 175 P.3d 632 ; People v. Duncan (1991) 53 Cal.3d 955 , 977, 281 Cal.Rptr. 273 , 810 P.2d 131 .) He observes, however, that none of the prior decisions considered People v. Smith (2005) 35 Cal.4th 334 , 25 Cal.Rptr.3d 554 , 107 P.3d 229 , in which this court concluded that a modified instruction that was based on CALJIC No. 8.88 satisfied the constitutional **559 command to inform the jury of its sentencing discretion. ( Smith, at p. 371, 25 Cal.Rptr.3d 554 , 107 P.3d 229 .) The instruction in that case told

2017(See, e.g., People v. Brasure, supra, 42 Cal.4th at pp. 1061-1064, 71 Cal.Rptr.3d 675 , 175 P.3d 632 ; People v. Duncan (1991) 53 Cal.3d 955 , 977, 281 Cal.Rptr. 273 , 810 P.2d 131 .) He observes, however, that none of the prior decisions considered People v. Smith (2005) 35 Cal.4th 334 , 25 Cal.Rptr.3d 554 , 107 P.3d 229 , in which this court concluded that a modified instruction that was based on CALJIC No. 8.88 satisfied the constitutional **559 command to inform the jury of its sentencing discretion. ( Smith, at p. 371, 25 Cal.Rptr.3d 554 , 107 P.3d 229 .) The instruction in that case told

2015Under the modified test, a defendant has the burden to prove by a preponderance of the evidence that (1) his or her counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) he or she suffered prejudice from counsel’s deficient performance, i.e., “there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.” (Id. at p. 59; see also Resendiz, supra, 25 Cal.4th at pp. 239, 248-254.) A defendant’s claim that he or she would not have pleaded guilt

2015Under the modified test, a defendant has the burden to prove by a preponderance of the evidence that (1) his or her counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) he or she suffered prejudice from counsel’s deficient performance, i.e., “there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.” (Id. at p. 59; see also Resendiz, supra, 25 Cal.4th at pp. 239, 248-254.) A defendant’s claim that he or she would not have pleaded guilt

2020(Strickland v. Washington (1984) 466 U.S. 668, 687 .) As noted, defense counsel’s failure to object to the modified instruction was not deficient.

2014To establish a violation of the constitutional right to effective assistance of counsel, defendant must show that counsel’s performance failed to meet an objective standard of reasonable competence and also that it undermined the adversarial process so much that “ ‘the trial cannot be relied on as having produced a just result.’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 783-784 , quoting Strickland v. Washington (1984) 466 U.S. 668, 686 [ 80 L.Ed.2d 674, 692-693 ].) 6 We have already explained that the bench note language was not required.

1988As we explained in People v. Brown, supra, 40 Cal.3d 512, 536-544 , and People v. Allen, supra, 42 Cal.3d 1222, 1276-1277 , such an instruction, together with the arguments of counsel, may mislead a reasonable jury to believe (i) its sentencing responsibility was to be discharged by a mere "counting" of aggravating and mitigating *576 factors, or (ii) that it was permitted to arrive at its sentencing decision without having to exercise its moral discretion and decide whether death is the appropriate penalty for this offense and offender. ( Allen, supra, 42 Cal.3d at pp. 1276-1277.) (16) In the

1988As we explained in People v. Brown, supra, 40 Cal.3d 512, 536-544 , and People v. Allen, supra, 42 Cal.3d 1222, 1276-1277 , such an instruction, together with the arguments of counsel, may mislead a reasonable jury to believe (i) its sentencing responsibility was to be discharged by a mere "counting" of aggravating and mitigating *576 factors, or (ii) that it was permitted to arrive at its sentencing decision without having to exercise its moral discretion and decide whether death is the appropriate penalty for this offense and offender. ( Allen, supra, 42 Cal.3d at pp. 1276-1277.) (16) In the

2025(People v. Earp (1999) 20 Cal.4th 826, 887 .) ‘[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.’ (People v. Mena (2012) 54 Cal.4th 146, 162 .)” (People v. Santana, supra, 56 Cal.4th at p. 1012 .) We do not need to decide whether the modified instruction was argumentative because even assuming error, we conclude it was harmless under Watson.

2016(People v. Earp (1999) 20 Cal.4th 826, 887 [ 85 Cal.Rptr.2d 857 , 978 P.2d 15 ].) The issue of David Zaragoza’s motivation for the robbery was essentially moot, given the undisputed evidence that he committed the robbery.

2022When it is shown that an attempt [sic] killing resulted from the intentional doing of an act with implied malice, no other mental state need be shown to establish the mental state of malice aforethought . . . .’ (CALJIC No. 8.11, as modified, italics added.)” (Lee, supra, 43 Cal.3d at p. 670 .) The jury was also instructed that “ ‘[w]hen the attempt [sic] killing is the direct result of such an intentional act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.’ (CALJIC No. 8.31, as modified, italics added.)” (Ibid.) Thus, the

2016(See People v. Flood (1998) 18 Cal.4th 470, 502-503 ; see also People v. Lee (1987) 4 We do not reach the question of whether the trial court separately erred by responding to the jury’s request for definitions of the terms “culpable” and “culpable negligence.” As defendant acknowledges, the jury would not have asked for definitions of those terms but for their inclusion in the modified instruction. 13 43 Cal.3d 666, 674 [Chapman standard applies where “conflicting instructions” on the mental state element of an alleged offense can act to “remove the intent issue from the jury’s consideration”

2018Ultimately, the court modified the standard instruction to add the following: "Each of you remains obligated to decide for yourself, based upon the weighing of the factors in aggravation and mitigation, whether death or life without possibility of parole is the appropriate penalty, despite testimony offered by the defendant suggesting a preference for a particular penalty." This instruction was sufficient to protect defendant from an unreliable verdict. ( People v. Webb , supra , 6 Cal.4th at p. 535 , 24 Cal.Rptr.2d 779 , 862 P.2d 779 .) Indeed, we have upheld death verdicts *51 even absent su

2018Ultimately, the court modified the standard instruction to add the following: "Each of you remains obligated to decide for yourself, based upon the weighing of the factors in aggravation and mitigation, whether death or life without possibility of parole is the appropriate penalty, despite testimony offered by the defendant suggesting a preference for a particular penalty." This instruction was sufficient to protect defendant from an unreliable verdict. ( People v. Webb , supra , 6 Cal.4th at p. 535 , 24 Cal.Rptr.2d 779 , 862 P.2d 779 .) Indeed, we have upheld death verdicts *51 even absent su

2018The vast majority of growers were not subject to individual surface monitoring to identify sources of exceedances or the effectiveness of individual farm management practices. *152 The court found the modified waiver did not comply with the NPS Policy (discussed ante in the Legal Background) "because it lacks adequate monitoring and reporting to verify compliance with requirements and measure progress over time; specific time schedules designed to measure progress toward reaching quantifiable milestones; and a description of the action(s) to be taken if verification/feedback mechanisms indicat

2018The vast majority of growers were not subject to individual surface monitoring to identify sources of exceedances or the effectiveness of individual farm management practices. *152 The court found the modified waiver did not comply with the NPS Policy (discussed ante in the Legal Background) "because it lacks adequate monitoring and reporting to verify compliance with requirements and measure progress over time; specific time schedules designed to measure progress toward reaching quantifiable milestones; and a description of the action(s) to be taken if verification/feedback mechanisms indicat

2016(See People v. Flood (1998) 18 Cal.4th 470, 502-503 ; see also People v. Lee (1987) 4 We do not reach the question of whether the trial court separately erred by responding to the jury’s request for definitions of the terms “culpable” and “culpable negligence.” As defendant acknowledges, the jury would not have asked for definitions of those terms but for their inclusion in the modified instruction. 13 43 Cal.3d 666, 674 [Chapman standard applies where “conflicting instructions” on the mental state element of an alleged offense can act to “remove the intent issue from the jury’s consideration”

2013In this case, there is no prejudice even if we assume that the more rigorous evaluation of prejudice under Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 ] applies.

2016(See People v. Flood (1998) 18 Cal.4th 470, 502-503 ; see also People v. Lee (1987) 4 We do not reach the question of whether the trial court separately erred by responding to the jury’s request for definitions of the terms “culpable” and “culpable negligence.” As defendant acknowledges, the jury would not have asked for definitions of those terms but for their inclusion in the modified instruction. 13 43 Cal.3d 666, 674 [Chapman standard applies where “conflicting instructions” on the mental state element of an alleged offense can act to “remove the intent issue from the jury’s consideration”

2014(People v. Flood (1998) 18 Cal.4th 470, 482, 492 (Flood).) In Flood, the defendant was charged with a violation of Vehicle Code section 2800.3, evading a pursuing peace officer. (18 Cal.4th at pp. 475-476.) The statutory elements of the offense required the prosecution to prove, among other things, that the defendant was attempting to elude a vehicle operated by a “peace officer” as defined in the Penal Code.

2015Rather, there must be some objective showing.” (In re Vargas (2000) 83 Cal.App.4th 1125, 1140 .) In evaluating trial counsel’s actions, “[a] court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance.” 10 (People v. Dennis (1998) 17 Cal.4th 468, 541 .) The constitutional test for counsel’s performance is “ ‘reasonableness,’ viewed from counsel’s perspective at the time of his challenged act or omission. [Citations.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244 .) Defendant claims Dixon “was ignorant of the relevant fact

2014(Harrington v. Richter (2011) __ U.S. __ [ 2011 U.S. LEXIS 912 ]; People v. Holt (1997) 15 Cal.4th 619, 703 .) Trial counsel’s performance must be evaluated based on his or her perspective at that time rather than having that performance viewed through “the distorting effects of hindsight.” (Strickland v. Washington, supra, 466 U.S. at p. 689 ; see also In re Andrews (2002) 28 Cal.4th 1234, 1255 .) In evaluating trial counsel’s actions, “[a] court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance.” (People v. Dennis (1998) 17