prosecution requested instruction in California

2019The Stanfill court thought its broader request-or-acquiescence rule necessary to avoid situations where "the defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the theory that he never expressly waived." ( Stanfill , supra , 76 Cal.App.4th at p. 1148 , 90 Cal.Rptr.2d 885 .) Obviously, a defendant who is aware of the statute of limitations issue may attempt to game the system in this way, even if it is the prosecutor who suggests a time-barred lesser instruction.

2019The Stanfill court thought its broader request-or-acquiescence rule necessary to avoid situations where "the defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the theory that he never expressly waived." ( Stanfill , supra , 76 Cal.App.4th at p. 1148 , 90 Cal.Rptr.2d 885 .) Obviously, a defendant who is aware of the statute of limitations issue may attempt to game the system in this way, even if it is the prosecutor who suggests a time-barred lesser instruction.

2014(Breverman, supra, 19 Cal.4th at p. 157 .) During the trial court proceedings, the prosecution requested an instruction on mistake of law.

2014(Breverman, supra, 19 Cal.4th at p. 157 .) During the trial court proceedings, the prosecution requested an instruction on mistake of law.

2026(See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [whether to do so is a matter of an appellate court’s sound discretion].) 14. statute of limitations issue on appeal.” (Meza, supra, 38 Cal.App.5th at p. 828 , italics added.) Beasley notwithstanding, therefore, the Meza court “decline[d] to extend [Stanfill’s] holding to allow forfeiture where the prosecution requested the instruction and there is no evidence defendant made an informed decision to relinquish his right to challenge a conviction for the time–barred lesser included offense on appeal.” (Meza, supra, 38 Cal.App.5th at p. 82

2026(See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [whether to do so is a matter of an appellate court’s sound discretion].) 14. statute of limitations issue on appeal.” (Meza, supra, 38 Cal.App.5th at p. 828 , italics added.) Beasley notwithstanding, therefore, the Meza court “decline[d] to extend [Stanfill’s] holding to allow forfeiture where the prosecution requested the instruction and there is no evidence defendant made an informed decision to relinquish his right to challenge a conviction for the time–barred lesser included offense on appeal.” (Meza, supra, 38 Cal.App.5th at p. 82

2024(See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 419 .) 17 Here, the prosecution requested the instruction, claiming the jury may perceive its failure to call R.J. as a witness as a failure of proof.

2021(Ibid.) At sentencing, the court imposed the 25- year-to-life enhancements on each of the five robbery counts over the defendant’s Eighth Amendment objection, and the defendant appealed. ( Anderson, supra, at 952 .) On appeal, the defendant argued for the first time that the enhancements could not be imposed because they had not been adequately pled in the charging document.

2021Counsel for Rudd requested that the court strike the eleventh factor, which directed the jury to 9 PEOPLE v. LEMCKE Opinion of the Court by Groban, J. consider: “How certain was the witness when he or she made an identification?” Counsel explained that his objection was based on a concurring opinion in Sánchez, supra, 63 Cal.4th 411 , that questioned the continuing validity of the certainty instruction in light of empirical research finding little correlation “between witness confidence and witness accuracy.” The trial court denied Rudd’s request, explaining that the certainty language set for

2021Counsel for Rudd requested that the court strike the eleventh factor, which directed the jury to 9 PEOPLE v. LEMCKE Opinion of the Court by Groban, J. consider: “How certain was the witness when he or she made an identification?” Counsel explained that his objection was based on a concurring opinion in Sánchez, supra, 63 Cal.4th 411 , that questioned the continuing validity of the certainty instruction in light of empirical research finding little correlation “between witness confidence and witness accuracy.” The trial court denied Rudd’s request, explaining that the certainty language set for

2018(See People v. Vela (1985) 172 Cal.App.3d 237 , 242, 218 Cal.Rptr. 161 [holding that a defendant is not guilty of forcible rape if a victim withdraws consent during intercourse], disapproved of in In re John Z. (2003) 29 Cal.4th 756 , 760-763, 128 Cal.Rptr.2d 783 , 60 P.3d 183 .) But the uncontradicted evidence at trial showed that Perez did in fact use force to overcome the victim's will, so jurors could not have found that Perez had sex with the victim without believing that he used force either before or during intercourse.

2018(See People v. Vela (1985) 172 Cal.App.3d 237 , 242, 218 Cal.Rptr. 161 [holding that a defendant is not guilty of forcible rape if a victim withdraws consent during intercourse], disapproved of in In re John Z. (2003) 29 Cal.4th 756 , 760-763, 128 Cal.Rptr.2d 783 , 60 P.3d 183 .) But the uncontradicted evidence at trial showed that Perez did in fact use force to overcome the victim's will, so jurors could not have found that Perez had sex with the victim without believing that he used force either before or during intercourse.

2018(See People v. Vela (1985) 172 Cal.App.3d 237 , 242, 218 Cal.Rptr. 161 [holding that a defendant is not guilty of forcible rape if a victim withdraws consent during intercourse], disapproved of in In re John Z. (2003) 29 Cal.4th 756 , 760-763, 128 Cal.Rptr.2d 783 , 60 P.3d 183 .) But the uncontradicted evidence at trial showed that Perez did in fact use force to overcome the victim's will, so jurors could not have found that Perez had sex with the victim without believing that he used force either before or during intercourse.

2018(See People v. Vela (1985) 172 Cal.App.3d 237 , 242, 218 Cal.Rptr. 161 [holding that a defendant is not guilty of forcible rape if a victim withdraws consent during intercourse], disapproved of in In re John Z. (2003) 29 Cal.4th 756 , 760-763, 128 Cal.Rptr.2d 783 , 60 P.3d 183 .) But the uncontradicted evidence at trial showed that Perez did in fact use force to overcome the victim's will, so jurors could not have found that Perez had sex with the victim without believing that he used force either before or during intercourse.

2004This case is therefore unlike Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 , in which the prosecution ambushed the defense by submitting an instruction on a felony-murder theory after the jury instruction conference and during closing argument, and in which “the concept of felony-murder [was not] raised, directly or indirectly,” at any time “during pretrial proceedings, opening statements, or the taking of testimony . . . .” (Id., at p. 1235; see also People v. Gallego (1990) 52 Cal.3d 115, 189 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ].) b.

1998(See ante, at p. 199; cf. People v. Birks, supra, 19 Cal.4th at pp. 124, 126 [Section 1159 is “nearly identical” to rule 31(c) of the Federal Rules of Criminal Procedure (18 U.S.C.), the governing federal rule, and “there is no reason to assume our statute has any different purpose, or any broader meaning, than rule 31(c)” as construed by the United States Supreme Court.].) A request-based rule is also consistent with the result reached in our recent decision in People v. Barton, supra, 12 Cal.4th 186 , where the prosecution requested that the instruction at issue be given. 4 (Barton, supra, a

1998(See ante, at pp. 907-908 of 77 Cal. Rptr.2d, at pp. 1130-1131 of 960 P.2d; cf. People v. Birks, supra, 19 Cal.4th at pp. 124, 126, 77 Cal.Rptr.2d 848 , 960 P.2d 1073 [Section 1159 is "nearly identical" to rule 31(c) of the Federal Rules of Criminal Procedure (18 U.S.C.), the governing federal rule, and "there is no reason to assume our statute has any different purpose, or any broader meaning, than rule 31(c)" as construed by the United States Supreme Court.].) A request-based rule is also consistent with the result reached in our recent decision in People v. Barton, supra, 12 Cal.4th 186 , 4

1998(See ante, at pp. 907-908 of 77 Cal. Rptr.2d, at pp. 1130-1131 of 960 P.2d; cf. People v. Birks, supra, 19 Cal.4th at pp. 124, 126, 77 Cal.Rptr.2d 848 , 960 P.2d 1073 [Section 1159 is "nearly identical" to rule 31(c) of the Federal Rules of Criminal Procedure (18 U.S.C.), the governing federal rule, and "there is no reason to assume our statute has any different purpose, or any broader meaning, than rule 31(c)" as construed by the United States Supreme Court.].) A request-based rule is also consistent with the result reached in our recent decision in People v. Barton, supra, 12 Cal.4th 186 , 4

1998(See ante, at pp. 907-908 of 77 Cal. Rptr.2d, at pp. 1130-1131 of 960 P.2d; cf. People v. Birks, supra, 19 Cal.4th at pp. 124, 126, 77 Cal.Rptr.2d 848 , 960 P.2d 1073 [Section 1159 is "nearly identical" to rule 31(c) of the Federal Rules of Criminal Procedure (18 U.S.C.), the governing federal rule, and "there is no reason to assume our statute has any different purpose, or any broader meaning, than rule 31(c)" as construed by the United States Supreme Court.].) A request-based rule is also consistent with the result reached in our recent decision in People v. Barton, supra, 12 Cal.4th 186 , 4

1958(People v. Guasti, 110 Cal.App.2d 456 [ 243 P.2d 59 ].) Finally, appellant contends that the trial court prejudicially erred in refusing to instruct the jury on admissions. *135 It appears that the prosecution requested an instruction on the subject of admissions, but the request was refused by the court upon the ground that there was no evidence of an admission.

1958(People v. Guasti, 110 Cal.App.2d 456 [ 243 P.2d 59 ].) Finally, appellant contends that the trial court prejudicially erred in refusing to instruct the jury on admissions. *135 It appears that the prosecution requested an instruction on the subject of admissions, but the request was refused by the court upon the ground that there was no evidence of an admission.