Kurtzman error in California

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(People v. Fields (1996) 13 Cal.4th 289, 309, fn. 7 , citing Berryman, supra, 19 Cal.4th at p. 1077, fn. 7 [finding that “it will likely be a matter of pure conjecture whether [an erroneous instruction under Kurtzman] had any effect, whom it affected, and what the effect was”].) We read the high court’s comments as focusing on the difficulties inherent in determining the impact of Kurtzman error on unrecorded jury deliberations, not as a suggestion that prejudice (or lack thereof) cannot be found in this context.

2026(People v. Fields (1996) 13 Cal.4th 289, 309, fn. 7 , citing Berryman, supra, 19 Cal.4th at p. 1077, fn. 7 [finding that “it will likely be a matter of pure conjecture whether [an erroneous instruction under Kurtzman] had any effect, whom it affected, and what the effect was”].) We read the high court’s comments as focusing on the difficulties inherent in determining the impact of Kurtzman error on unrecorded jury deliberations, not as a suggestion that prejudice (or lack thereof) cannot be found in this context.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2025(See People v. Perez (1989) 212 Cal.App.3d 395, 400 [any Kurtzman error was harmless when the jury’s requests during deliberations evidenced that they considered both the greater and the lesser offenses].) Nonetheless, Whitecarter argues that the “misleading version of [former CALCRIM No. 3517] may have given the jury the impression that they could give no meaningful consideration of the lesser offenses before rendering a verdict on the greater offenses.” This argument is not only speculative but also makes no sense in light of the jury’s last written request to the trial court.

2022(See, e.g., People v. Perez (1989) 212 Cal.App.3d 395, 399 .) It follows, then, that defense counsel should have objected to the prosecutor’s Kurtzman error.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026(Kurtzman, supra, 46 Cal.3d at p. 335 ; ibid. [applying the standard of prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman) [because Kurtzman error “implicate[s] California law only,” prejudice is shown if the error had “ ‘a reasonable probability of an effect on the outcome’ ”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823 ; accord, Olivas, supra, 248 Cal.App.4th at p. 775 [applying the Watson standard in reliance on Kurtzman and Berryman]; but see Hishmeh, supra, 52 Cal.App.

2026Legal Framework Under the “acquittal-first rule,” when a jury is instructed on a lesser included offense, it “ ‘must acquit of the greater offense before returning a verdict on the lesser included offense.’ ” (People v. Anderson (2009) 47 Cal.4th 92, 114 (Anderson).) The rule is meant to enforce double jeopardy protections by avoiding “retrial when the jury agrees that the greater offense was not proven but cannot agree on a lesser included offense.

2026Legal Framework Under the “acquittal-first rule,” when a jury is instructed on a lesser included offense, it “ ‘must acquit of the greater offense before returning a verdict on the lesser included offense.’ ” (People v. Anderson (2009) 47 Cal.4th 92, 114 (Anderson).) The rule is meant to enforce double jeopardy protections by avoiding “retrial when the jury agrees that the greater offense was not proven but cannot agree on a lesser included offense.

2022(Cf. Dennis, supra, 17 Cal.4th at p. 537 [rejecting an argument of Kurtzman error, because “a reasonable juror would have understood the [challenged] instruction, which the court told the jury to consider . . . with the other instructions as a whole, as governing how to return the verdicts and findings after completing deliberations,” where “[o]ther instructions implicitly told the jury that its deliberations should include consideration of the lesser offenses” (italics added)].)5 Accordingly, this claim is unpersuasive. 5 Defendant quotes Francis v. Franklin (1985) 471 U.S. 307, 322 , for the

2000(People v. Dennis (1998) 17 Cal.4th 468, 535-537 [ 71 Cal.Rptr.2d 680 , 950 P.2d 1035 ].) Defendant argues that in cases like Dennis , we have “appeared to retreat from Kurtzman,” noting that we found “error (albeit harmless) in Kurtzman itself.” However, in Kurtzman , the trial court told the jury it had to agree unanimously on the greater offense “before considering” the lesser offense.

2025(Kurtzman, supra, 46 Cal.3d at p. 335 ; see People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 [Kurtzman-related error “appears to implicate 13 California law only”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 ; Olivas, supra, 248 Cal.App.4th at p. 775 [applying Watson in reliance on Kurtzman and Berryman].) But more recently, in Hishmeh, the Fourth District Court of Appeal seemed to suggest that Kurtzman error is harmless only if it did not contribute to the verdict beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).

2021(See People v. Frederickson (2020) 8 Cal.5th 963 , 1026 [“‘[t]o the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control’”]; People v. Mills (2010) 48 Cal.4th 158, 201 [“[b]ecause the jury was given the correctly worded instructions in written form and instructed with CALJIC No. 17.45 that ‘[y]ou are to be governed only by the instruction in its final wording,’ and because on appeal we give precedence to the written instructions, we find no reversible error” (fn. omitted)].) Although the trial court d

2016The Kurtzman Error Was Prejudicial The Kurtzman court applied the Watson standard of prejudice to the trial court’s error (Kurtzman, supra, 46 Cal.3d at p. 335 ), and the Supreme Court later stated in Berryman that Kurtzman error “appears to implicate California law only.” (Berryman, supra, 6 Cal.4th at p. 1077, fn. 7, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1 ; cf. Breverman, supra, 19 Cal.4th at p. 149 [applying Watson standard to misdirection claim under Cal. Const., art.

2016(People v. Carey (2007) 41 Cal.4th 109, 129 [notwithstanding defendant’s failure to object, claim is cognizable on appeal to the extent it implicates defendant’s substantial rights].) We reject these contentions.

2016(People v. Carey (2007) 41 Cal.4th 109, 129 [notwithstanding defendant’s failure to object, claim is cognizable on appeal to the extent it implicates defendant’s substantial rights].) We reject these contentions.

2015(Kurtzman, supra, 46 Cal.3d at p. 335 ; see, e.g., People v. Perez (1989) 212 Cal.App.3d 395, 399 (Perez) [finding Kurtzman error where court told jury it "should not 'consider' lesser offenses before acquitting on the second degree murder count"]; People v. Benally (1989) 208 Cal.App.3d 900, 912 (Benally) [finding Kurtzman error where court told jury to " 'consider' the lesser charge only after it had reached the unanimous opinion that [the defendant] was not guilty of the greater offense"].) However, Kurtzman requires reversal only where it is "reasonably probable that a different result wou

2015(See, e.g., Benally, supra, 208 Cal.App.3d at p. 912 [Kurtzman error harmless where jury's questions evinced deliberation on the lesser offense]; Perez, supra, 212 Cal.App.3d at p. 400 [error 8 harmless given "the absence of any indication that the statement thwarted the continuation of an appropriately full pattern of deliberations"].) Absent the instructional error, Lopez argues it was reasonably probable the jury would have convicted him of only misdemeanor false imprisonment at Bed Headz Hair Salon and Panache Beauty Salon.

2014(See, e.g., People v. Hernandez (2011) 51 Cal.4th 733, 746 [referring to "the defendant's burden under Watson, supra, 46 Cal.2d at page 837 , to establish a reasonable probability that error affected the trial's result," italics added].) 12 We emphasize that Harmon makes no claim on appeal with respect to the trial court's oral instruction. 16 harmless in part because of the "possibly ambiguous nature of the court's statement . . . at issue"].) Further, as in Kurtzman, after the trial court provided an incorrect instruction to the jury, the record reflects that the jury continued to deliberate

2000(People v. Brown (1996) 42 Cal.App.4th 1493, 1502-1503 [ 50 Cal.Rptr.2d 407 ].) Finally, the court instructed the jury that if it “is not satisfied beyond a reasonable doubt that the defendant is guilty of [the charged offenses], and it unanimously so finds, it may convict him of any lesser offense if the jury is convinced beyond a reasonable doubt that he is guilty of such lesser offense.” Defendant argues the instruction violates both the federal Constitution and the rule of People v. Kurtzman (1988) 46 Cal.3d *1201 322, 325 [ 250 Cal.Rptr. 244 , 758 P.2d 572 ], that the court may not preclu

2000(People v. Brown (1996) 42 Cal.App.4th 1493, 1502-1503 [ 50 Cal.Rptr.2d 407 ].) Finally, the court instructed the jury that if it “is not satisfied beyond a reasonable doubt that the defendant is guilty of [the charged offenses], and it unanimously so finds, it may convict him of any lesser offense if the jury is convinced beyond a reasonable doubt that he is guilty of such lesser offense.” Defendant argues the instruction violates both the federal Constitution and the rule of People v. Kurtzman (1988) 46 Cal.3d *1201 322, 325 [ 250 Cal.Rptr. 244 , 758 P.2d 572 ], that the court may not preclu