rendition instruction in California

1992The test for instructional “invited error,” as stated by People v. Graham (1969) 71 Cal.2d 303, 318 [ 78 Cal.Rptr. 217 , 455 P.2d 153 ] requires that “defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” Recent California Supreme Court cases have eased the “expressly” requirement and have found “invited error” where tactical objection was inferable from the record.

1992The test for instructional “invited error,” as stated by People v. Graham (1969) 71 Cal.2d 303, 318 [ 78 Cal.Rptr. 217 , 455 P.2d 153 ] requires that “defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” Recent California Supreme Court cases have eased the “expressly” requirement and have found “invited error” where tactical objection was inferable from the record.

2008(Cf. People v. Young (2005) 34 Cal.4th 1149, 1203 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ] (Young) [“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal”]; People v. Cooper (1991) 53 Cal.3d 771, 830 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [“ ‘the court’s responsibility [on its own motion to give a required instruction] could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics,

2008(Cf. People v. Young (2005) 34 Cal.4th 1149, 1203 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ] (Young) [“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal”]; People v. Cooper (1991) 53 Cal.3d 771, 830 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [“ ‘the court’s responsibility [on its own motion to give a required instruction] could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics,

1967(See Fowler v. Allen, 49 Cal.App.2d 214, 219 [ 121 P.2d 41 ]; Ramos v. Service Bros., 118 Cal.App. 432, 438 [ 5 P.2d 623 ].) The rendition of the instruction under the factual situation herein presented was proper in determining whether plaintiff’s driver was negligent in suddenly stopping without signaling.

1967(See Fowler v. Allen, 49 Cal.App.2d 214, 219 [ 121 P.2d 41 ]; Ramos v. Service Bros., 118 Cal.App. 432, 438 [ 5 P.2d 623 ].) The rendition of the instruction under the factual situation herein presented was proper in determining whether plaintiff’s driver was negligent in suddenly stopping without signaling.

1967(See Fowler v. Allen, 49 Cal.App.2d 214, 219 [ 121 P.2d 41 ]; Ramos v. Service Bros., 118 Cal.App. 432, 438 [ 5 P.2d 623 ].) The rendition of the instruction under the factual situation herein presented was proper in determining whether plaintiff’s driver was negligent in suddenly stopping without signaling.

1967(See Fowler v. Allen, 49 Cal.App.2d 214, 219 [ 121 P.2d 41 ]; Ramos v. Service Bros., 118 Cal.App. 432, 438 [ 5 P.2d 623 ].) The rendition of the instruction under the factual situation herein presented was proper in determining whether plaintiff’s driver was negligent in suddenly stopping without signaling.

1991Graham , citing with approval the finding of invited error in People v. Phillips (1966) 64 Cal.2d 574 [ 51 Cal.Rptr. 225 , 414 P.2d 353 ], stated the rule to be “that the court’s responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” ( 71 Cal.2d at p. 318 ; see Wickersham, supra, 32 Cal.3d at p. 331 .) In People v. Wickersham, supra, 32 Cal. 3d 307 , the record similarly was devoid of any expressed tactical choice.

1991Graham , citing with approval the finding of invited error in People v. Phillips (1966) 64 Cal.2d 574 [ 51 Cal.Rptr. 225 , 414 P.2d 353 ], stated the rule to be “that the court’s responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” ( 71 Cal.2d at p. 318 ; see Wickersham, supra, 32 Cal.3d at p. 331 .) In People v. Wickersham, supra, 32 Cal. 3d 307 , the record similarly was devoid of any expressed tactical choice.

2008(Cf. People v. Young (2005) 34 Cal.4th 1149, 1203 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ] (Young) [“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal”]; People v. Cooper (1991) 53 Cal.3d 771, 830 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [“ ‘the court’s responsibility [on its own motion to give a required instruction] could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics,

2008(Cf. People v. Young (2005) 34 Cal.4th 1149, 1203 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ] (Young) [“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal”]; People v. Cooper (1991) 53 Cal.3d 771, 830 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [“ ‘the court’s responsibility [on its own motion to give a required instruction] could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics,

1992The test for instructional "invited error," as stated by People v. Graham (1969) 71 Cal.2d 303, 318 [ 78 Cal. Rptr. 217 , 455 P.2d 153 ] requires that "defense counsel deliberately and expressly, as a matter of trial tactics, *824 objected to the rendition of an instruction." Recent California Supreme Court cases have eased the "expressly" requirement and have found "invited error" where tactical objection was inferable from the record. ( People v. Duncan (1991) 53 Cal.3d 955, 969-970 [ 281 Cal. Rptr. 273 , 810 P.2d 131 ] [All-or-nothing tactical strategy]; People v. Cooper (1991) 53 Cal.3d 77

1992The test for instructional "invited error," as stated by People v. Graham (1969) 71 Cal.2d 303, 318 [ 78 Cal. Rptr. 217 , 455 P.2d 153 ] requires that "defense counsel deliberately and expressly, as a matter of trial tactics, *824 objected to the rendition of an instruction." Recent California Supreme Court cases have eased the "expressly" requirement and have found "invited error" where tactical objection was inferable from the record. ( People v. Duncan (1991) 53 Cal.3d 955, 969-970 [ 281 Cal. Rptr. 273 , 810 P.2d 131 ] [All-or-nothing tactical strategy]; People v. Cooper (1991) 53 Cal.3d 77

1992The test for instructional "invited error," as stated by People v. Graham (1969) 71 Cal.2d 303, 318 [ 78 Cal. Rptr. 217 , 455 P.2d 153 ] requires that "defense counsel deliberately and expressly, as a matter of trial tactics, *824 objected to the rendition of an instruction." Recent California Supreme Court cases have eased the "expressly" requirement and have found "invited error" where tactical objection was inferable from the record. ( People v. Duncan (1991) 53 Cal.3d 955, 969-970 [ 281 Cal. Rptr. 273 , 810 P.2d 131 ] [All-or-nothing tactical strategy]; People v. Cooper (1991) 53 Cal.3d 77

1992The test for instructional "invited error," as stated by People v. Graham (1969) 71 Cal.2d 303, 318 [ 78 Cal. Rptr. 217 , 455 P.2d 153 ] requires that "defense counsel deliberately and expressly, as a matter of trial tactics, *824 objected to the rendition of an instruction." Recent California Supreme Court cases have eased the "expressly" requirement and have found "invited error" where tactical objection was inferable from the record. ( People v. Duncan (1991) 53 Cal.3d 955, 969-970 [ 281 Cal. Rptr. 273 , 810 P.2d 131 ] [All-or-nothing tactical strategy]; People v. Cooper (1991) 53 Cal.3d 77

1991Graham , citing with approval the finding of invited error in People v. Phillips (1966) 64 Cal.2d 574 [ 51 Cal.Rptr. 225 , 414 P.2d 353 ], stated the rule to be “that the court’s responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” ( 71 Cal.2d at p. 318 ; see Wickersham, supra, 32 Cal.3d at p. 331 .) In People v. Wickersham, supra, 32 Cal. 3d 307 , the record similarly was devoid of any expressed tactical choice.

1991Graham , citing with approval the finding of invited error in People v. Phillips (1966) 64 Cal.2d 574 [ 51 Cal.Rptr. 225 , 414 P.2d 353 ], stated the rule to be “that the court’s responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” ( 71 Cal.2d at p. 318 ; see Wickersham, supra, 32 Cal.3d at p. 331 .) In People v. Wickersham, supra, 32 Cal. 3d 307 , the record similarly was devoid of any expressed tactical choice.

1991Graham , citing with approval the finding of invited error in People v. Phillips (1966) 64 Cal.2d 574 [ 51 Cal. Rptr. 225 , 414 P.2d 353 ], stated the rule to be "that the court's responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction." ( 71 Cal.2d at p. 318 ; see Wickersham, supra, 32 Cal.3d at p. 331 .) In People v. Wickersham, supra, 32 Cal.3d 307 , the record similarly was devoid of any expressed tactical choice. ( Id. at pp. 322-323.) We quoted with ap

1991Graham , citing with approval the finding of invited error in People v. Phillips (1966) 64 Cal.2d 574 [ 51 Cal. Rptr. 225 , 414 P.2d 353 ], stated the rule to be "that the court's responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction." ( 71 Cal.2d at p. 318 ; see Wickersham, supra, 32 Cal.3d at p. 331 .) In People v. Wickersham, supra, 32 Cal.3d 307 , the record similarly was devoid of any expressed tactical choice. ( Id. at pp. 322-323.) We quoted with ap

1978Noting that an environment of incommunicado police-dominated interrogation “is created for no purpose other than to subjugate the individual to the will of his examiner,” the United States Supreme Court in Miranda , concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” (Miranda v. Arizona, supra, 384 U.S. 436, 457, 467 [ 16 L.Ed.2d 694, 713-714, 719 ].) The Sup

1978Noting that an environment of incommunicado police-dominated interrogation “is created for no purpose other than to subjugate the individual to the will of his examiner,” the United States Supreme Court in Miranda , concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” (Miranda v. Arizona, supra, 384 U.S. 436, 457, 467 [ 16 L.Ed.2d 694, 713-714, 719 ].) The Sup

1976Exch., 42 Cal.App.3d 681, 690-691 [ 117 Cal.Rptr. 146 ].) Standard is correct that the rendition of this instruction was error.

1976Exch., 42 Cal.App.3d 681, 690-691 [ 117 Cal.Rptr. 146 ].) Standard is correct that the rendition of this instruction was error.

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1975(Gillespie v. Rawlings, 49 Cal.2d 359, 369 [ 317 P.2d 601 ]; Price v. Bekins Van & Storage Co., 179 Cal. 326, 328 [ 176 P. 452 ]; Posz v. Burchell, 209 Cal.App.2d 324, 336-337 [ 25 Cal.Rptr. 896 ]; Trelut v. Kazarian, 110 Cal.App.2d 506, 512 [ 243 P.2d 104 ].) The same principle applies to Kemper’s contention that BAJI No. 3.40, relating to the standard of care required of one working in a dangerous situation, should not have been given 7 and to its attack upon the rendition of an instruction pertaining to an employer’s duty to provide a safe place of employment. 8 The jury was *630 instructed

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1968Co„ 45 Cal,2d 244, 250-251 [ 288 P.2d 868 ]; Kruzie v. *54 Sanders, 23 Cal.2d 237, 241 [ 143 P.2d 704 ]; Whitechat v. Guyette, 19 Cal.2d 428, 432-433 [ 122 P.2d 47 ]; McCann v. Hoffman, supra, 9 Cal.2d 279, 284, 286 ; Sand v. Mahnan, supra, 248 Cal.App.2d 679, 683-684 ; Clapp v. Hester, 169 Cal. App.2d 558, 559-560 [ 337 P.2d 525 ].) Consequently the rendition of the instruction complained of by the appellants correctly stated as a matter of law that the plaintiff, if found by the jury to be in the position described, was not subject to the Guest Statute and the defendants had a duty to exerci

1967Co., 83 Cal. 246, 261 [ 23 P. 869 , 17 Am.St.Rep. 233 ].) While it is true that the issue of agency should not be submitted to the jury as a question of fact where there is no evidence to justify the rendition of the instruction (Glanville v. Cannick, 182 Cal.App.2d 514, 516-517 [ 6 Cal.Rptr. 175 ]), there was evidence present herein which justified the giving of the instruction.

1967Co., 83 Cal. 246, 261 [ 23 P. 869 , 17 Am.St.Rep. 233 ].) While it is true that the issue of agency should not be submitted to the jury as a question of fact where there is no evidence to justify the rendition of the instruction (Glanville v. Cannick, 182 Cal.App.2d 514, 516-517 [ 6 Cal.Rptr. 175 ]), there was evidence present herein which justified the giving of the instruction.

1967Co., 83 Cal. 246, 261 [ 23 P. 869 , 17 Am.St.Rep. 233 ].) While it is true that the issue of agency should not be submitted to the jury as a question of fact where there is no evidence to justify the rendition of the instruction (Glanville v. Cannick, 182 Cal.App.2d 514, 516-517 [ 6 Cal.Rptr. 175 ]), there was evidence present herein which justified the giving of the instruction.