give instruction in California

2023CALCRIM No. 3404 is a “pinpoint” instruction, and “on request, a criminal defendant is entitled to pinpoint instructions ... if the instructions are supported by substantial evidence.” (People v. Nelson (2016) 1 Cal.5th 513, 542 .) When reviewing the denial of a request for a jury instruction, doubts as to the sufficiency of the evidence are resolved in favor of the accused.

2020The facts and circumstances must be ‘“sufficient to arouse the passions of the ordinarily reasonable [person].”’ [Citation.] Moreover, the defendant must ‘actually be motivated by passion in committing the killing’; that is, he or she must be acting ‘“‘under the smart of that sudden quarrel or heat of passion.’”’” (People v. Nelson, supra, 1 Cal.5th at p. 539 .) The evidence didn’t require the court to give an instruction on heat of passion in this case.

2021(People v. Coffman & Marlow (2004) 34 Cal. 4th 1, 102 .) Flight does not require an actual escape or the physical act of running from the scene as long as the defendant acts with the purpose of avoiding observation or arrest.

2015However, evidence of such an attempt cannot prove guilt by itself.” The facts giving rise to an inference of consciousness of guilt do not need to be conclusively established for the court to give an instruction, “ ‘there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference. [Citations.]’ ” (People v. Alexander (2010) 49 Cal.4th 846 , 921–922 quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 .) Reed contends that the instruction supported an inference of “global guilt” of all crimes and was irrational and unfair.

2020But “[i]n this context [CALCRIM Nos. 521 and 522], provocation was not used in a technical sense peculiar to the law, and we assume the jurors were aware of the common meaning of the term.” (People v. Hernandez, supra, 183 Cal.App.4th at p. 1334 .) Although the jury 15 in People v. Hernandez had not been instructed on voluntary manslaughter, “a word or phrase has a technical, legal meaning that requires clarification only if it ‘has a definition that differs from its nonlegal meaning.’ ” (People v. Elam (2001) 91 Cal.App.4th 298, 306 .) Here, the common nonlegal and legal meanings of “provocat

2016(Hernandez, supra, 183 Cal.App.4th at p. 1334 .) Thus, Hernandez concluded that "even without express instruction, the jurors understood that the existence of provocation can support the absence of premeditation and deliberation" and "without a request for further instruction, the trial court was not required to amplify the instructions to explain this point." (Id. at p. 1334.) Notwithstanding the defendant in Hernandez did not expressly argue that provocation had a technical meaning, our conclusions in Hernandez directly addressed, and were necessary to resolve, the defendant's claim that the

1967Witkin, California Criminal Procedure says at page 487, speaking in respect of the obligation of the court to give an instruction on an included lesser offense: "This is not, ... one of the instructions which the judge must give on his own motion, without request ... [citing authorities]." At bench, however, appellant requested and the court did give the instruction on section 647a, subdivision (1), the lesser included offense. *528 In the recent case of People v. Jenkins, 232 Cal.App.2d 323, at 326 [ 42 Cal.Rptr. 654 ], the court said: "The rule is now well established that the trial court, w

1967Witkin, California Criminal Procedure says at page 487, speaking in respect of the obligation of the court to give an instruction on an included lesser offense: "This is not, ... one of the instructions which the judge must give on his own motion, without request ... [citing authorities]." At bench, however, appellant requested and the court did give the instruction on section 647a, subdivision (1), the lesser included offense. *528 In the recent case of People v. Jenkins, 232 Cal.App.2d 323, at 326 [ 42 Cal.Rptr. 654 ], the court said: "The rule is now well established that the trial court, w

2026During their closing arguments, however, each party supported its case in part by distinguishing between brandishing a knife and assaulting a person with one. 10 In both People v. Gallego (1990) 52 Cal.3d 115 , 183–184 and People v. Velez (1985) 175 Cal.App.3d 785 , 795–797, defendants who ingested illegal drugs they did not know were tainted with other substances were not entitled to jury instructions on involuntary intoxication.

2026During their closing arguments, however, each party supported its case in part by distinguishing between brandishing a knife and assaulting a person with one. 10 In both People v. Gallego (1990) 52 Cal.3d 115 , 183–184 and People v. Velez (1985) 175 Cal.App.3d 785 , 795–797, defendants who ingested illegal drugs they did not know were tainted with other substances were not entitled to jury instructions on involuntary intoxication.

2025The instruction included the optional element that appellant “did not act in self-defense.” However, the trial court did not give CALCRIM No. 3470, which defines the legal standard for lawful self-defense for nonhomicide offenses.7 CALCRIM No. 3470 and CALCRIM No. 505 both articulate the standard for lawful self-defense but differ as to “the type of the threat the defendant believed they 6 Because we conclude the trial court did not commit instructional error, we need not address appellant’s claim he was prejudiced by the instruction. 7 Defense counsel did not request the trial court give this

2025(Russo, supra, 25 Cal.4th at p. 1132 .) Only in the former situation, not the latter, should the court give the instruction.

2025(People v. Williams (2015) 61 Cal.4th 1244, 1264 .) We therefore conclude the trial court did not err in failing sua sponte to instruct the jury as to simple assault pursuant to section 240.

2024Thus it is now more like the ‘pinpoint’ instructions . . . to which a defendant is entitled upon request.” (People v. Saille (1991) 54 Cal.3d 1103, 1119 .) For the court to give an instruction on voluntary intoxication, there must be “evidence from which a reasonable jury could conclude defendant’s mental capacity was so reduced or impaired as to negate the required criminal intent. [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 848 .) “A jury may consider evidence of voluntary intoxication in determining whether a defendant had the requisite mental state for first degree murder.” (Pe

2024When an unreasonable risk of danger exists, the owner bears a duty to protect against the first occurrence, and cannot withhold precautionary measures until after the danger has come to fruition in an injury-causing accident.” Laverdure based this proposed instruction on language in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337 (Lane) and Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294 (Robison).

2024When an unreasonable risk of danger exists, the owner bears a duty to protect against the first occurrence, and cannot withhold precautionary measures until after the danger has come to fruition in an injury-causing accident.” Laverdure based this proposed instruction on language in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337 (Lane) and Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294 (Robison).

2024Thus it is now more like the ‘pinpoint’ instructions . . . to which a defendant is entitled upon request.” (People v. Saille (1991) 54 Cal.3d 1103, 1119 .) For the court to give an instruction on voluntary intoxication, there must be “evidence from which a reasonable jury could conclude defendant’s mental capacity was so reduced or impaired as to negate the required criminal intent. [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 848 .) “A jury may consider evidence of voluntary intoxication in determining whether a defendant had the requisite mental state for first degree murder.” (Pe

2024Agricultural Assn. (2016) 1 Cal.App.5th 504, 526 .) As discussed, Laverdure asked the court to give this instruction: “Lack of accidents is not dispositive whether a condition of property is dangerous or that it compels a finding of non dangerousness absent other evidence.

2022(People v. Hardy (2018) 5 Cal.5th 56, 99 .) 4 On appeal, Gallegos concedes that his attorney’s failure to request this instruction precludes raising the issue for the first time on appeal.

2021Analysis “California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149 .) An offense is a lesser included offense to a charged offense if the former is necessarily included in the latter.

2021Proc., § 475; People v. Watson 13 (1956) 46 Cal.2d 818, 836 ; see People v. Cavitt (2004) 33 Cal.4th 187, 209 [erroneous limiting instruction subject to Watson harmless error analysis].) For the court to give an instruction regarding flight as evincing consciousness of guilt, there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference.

2020Governing law on ineffective assistance of counsel “‘“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.”’” (People v. Rices (2017) 4 Cal.5th 49, 80 ; accord, People v. Mickel (2016) 2 Cal.5th 181 , 198 (Mickel); see Strickland v. Washington (1984) 466 U.S. 668, 687-6

2020But “[i]n this context [CALCRIM Nos. 521 and 522], provocation was not used in a technical sense peculiar to the law, and we assume the jurors were aware of the common meaning of the term.” (People v. Hernandez, supra, 183 Cal.App.4th at p. 1334 .) Although the jury 15 in People v. Hernandez had not been instructed on voluntary manslaughter, “a word or phrase has a technical, legal meaning that requires clarification only if it ‘has a definition that differs from its nonlegal meaning.’ ” (People v. Elam (2001) 91 Cal.App.4th 298, 306 .) Here, the common nonlegal and legal meanings of “provocat