questioned instruction in California

2022(Treber v. Superior Court (1968) 68 Cal.2d 128, 132 .) “[T]he sole issue is whether the order granting a new trial, viewed in the light of the whole record, constituted a manifest abuse of discretion.” (Ibid.) When a new trial is granted based on an erroneous instruction, “ ‘the order “will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury.” ’ ” (Caldwell, supra, 41 Cal.App.4th at p. 205 ; Brandelius, supra, 47 Cal.2d at pp. 745‒746.) Here, Ross proposed instructing the jury with CAC

2022(Treber v. Superior Court (1968) 68 Cal.2d 128, 132 .) “[T]he sole issue is whether the order granting a new trial, viewed in the light of the whole record, constituted a manifest abuse of discretion.” (Ibid.) When a new trial is granted based on an erroneous instruction, “ ‘the order “will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury.” ’ ” (Caldwell, supra, 41 Cal.App.4th at p. 205 ; Brandelius, supra, 47 Cal.2d at pp. 745‒746.) Here, Ross proposed instructing the jury with CAC

2022(Thomas v. Laguna (1952) 113 Cal.App.2d 657, 660 [“The giving of an instruction will not be reviewed by an appellate court unless the record sets forth the questioned instruction”]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 .) Although Neeble-Diamond acknowledges that our record does not include a copy of the instruction she challenges, she argues the omission can be overcome in two ways: first, she asks us to grant her motion to augment the record to include a copy of the jury instructions; second, she claims that the record contains sufficient information to allow us to in

1988All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .” (Orig. italics.)’ [Citation.]” (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051 [ 236 Cal.Rptr. 526 ], quoting Rossiter v. Benoit (1979) 88 Cal.App.3d *1533 706, 712 [ 152 Cal.Rptr. 65 ]; see Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [ 243 Cal.Rptr. 298 ]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 418, pp. 415-416.) A corollary of this rule is that, “The giving of an instruction will not be reviewed by a

2010Rules Applicable to Erroneous or Misleading Jury Instructions and Special Verdict Questions When a new trial is granted based on an erroneous or misleading jury instruction, the order “will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. [Citations.]” (Christian v. Bolls (1970) 7 Cal.App.3d 408, 415 [ 86 Cal.Rptr. 545 ].) “ ‘If the challenged instruction was erroneous in any degree, or even if it is only “fairly debatable” that such instruction may have been misleading, the broad

2010Rules Applicable to Erroneous or Misleading Jury Instructions and Special Verdict Questions When a new trial is granted based on an erroneous or misleading jury instruction, the order “will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. [Citations.]” (Christian v. Bolls (1970) 7 Cal.App.3d 408, 415 [ 86 Cal.Rptr. 545 ].) “ ‘If the challenged instruction was erroneous in any degree, or even if it is only “fairly debatable” that such instruction may have been misleading, the broad

1988All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .” (Orig. italics.)’ [Citation.]” (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051 [ 236 Cal.Rptr. 526 ], quoting Rossiter v. Benoit (1979) 88 Cal.App.3d *1533 706, 712 [ 152 Cal.Rptr. 65 ]; see Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [ 243 Cal.Rptr. 298 ]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 418, pp. 415-416.) A corollary of this rule is that, “The giving of an instruction will not be reviewed by a

1958(Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 27 [ 276 P. 1017 ].) “(2) The refusing of an instruction will not be reviewed by an appellate court unless the record sets forth the requested instruction.

1961(Black v. Partridge, 115 Cal.App.2d 639, 650 [ 252 P.2d 760 ] ; Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 133 [ 206 P.2d 653 ] ; see Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 519-520 [ 203 P.2d 522 ].) Under the circumstances of the present case it was error to give the instructions which set forth the doctrine without mentioning plaintiffs’ burden regarding the possibility that third persons may have been responsible for what happened.” *7 It should be noted that the questioned instruction has been discarded by BAJI and superseded by a different form (see BAJI, vol. 2, 1959 Supp.,

1961(Black v. Partridge, 115 Cal.App.2d 639, 650 [ 252 P.2d 760 ] ; Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 133 [ 206 P.2d 653 ] ; see Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 519-520 [ 203 P.2d 522 ].) Under the circumstances of the present case it was error to give the instructions which set forth the doctrine without mentioning plaintiffs’ burden regarding the possibility that third persons may have been responsible for what happened.” *7 It should be noted that the questioned instruction has been discarded by BAJI and superseded by a different form (see BAJI, vol. 2, 1959 Supp.,

1995Co. (1976) 54 Cal.App.3d 331, 345 [ 126 Cal.Rptr. 731 ].) When a new trial was granted on the basis of an erroneous instruction, the order ‘will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. [Citations.]’ (Christian v. Bolls (1970) 7 Cal.App.3d 408, 415 [ 86 Cal.Rptr. 545 ].)” (Hand Electronics, Inc. v. Snowline Joint Unified School Dist., supra, 21 Cal.App.4th 862, 871 .) Applying the foregoing principles to this case, we conclude that the trial court abused its discretion in g

1995Co. (1976) 54 Cal.App.3d 331, 345 [ 126 Cal.Rptr. 731 ].) When a new trial was granted on the basis of an erroneous instruction, the order ‘will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. [Citations.]’ (Christian v. Bolls (1970) 7 Cal.App.3d 408, 415 [ 86 Cal.Rptr. 545 ].)” (Hand Electronics, Inc. v. Snowline Joint Unified School Dist., supra, 21 Cal.App.4th 862, 871 .) Applying the foregoing principles to this case, we conclude that the trial court abused its discretion in g

1972However, under the authority of Code of Civil Procedure section 906, [21] we may review the trial court's decision that California law should apply in order to determine whether plaintiff was or was not prejudiced by the trial court's questioned instruction. ( Mott v. Horstmann, 36 Cal.2d 388, 393 [ 224 P.2d 11 ]; Auer v. Frank, 227 Cal. App.2d 396, 405 [ 38 Cal. Rptr. 684 , 8 A.L.R.3d 1108 ]; Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal. App.2d 850, 857 [ 1 Cal. Rptr. 733 ].) Plaintiff, of course, would not be prejudiced by the erroneous instruction requiring a findin

1972However, under the authority of Code of Civil Procedure section 906, [21] we may review the trial court's decision that California law should apply in order to determine whether plaintiff was or was not prejudiced by the trial court's questioned instruction. ( Mott v. Horstmann, 36 Cal.2d 388, 393 [ 224 P.2d 11 ]; Auer v. Frank, 227 Cal. App.2d 396, 405 [ 38 Cal. Rptr. 684 , 8 A.L.R.3d 1108 ]; Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal. App.2d 850, 857 [ 1 Cal. Rptr. 733 ].) Plaintiff, of course, would not be prejudiced by the erroneous instruction requiring a findin

1972However, under the authority of Code of Civil Procedure section 906, [21] we may review the trial court's decision that California law should apply in order to determine whether plaintiff was or was not prejudiced by the trial court's questioned instruction. ( Mott v. Horstmann, 36 Cal.2d 388, 393 [ 224 P.2d 11 ]; Auer v. Frank, 227 Cal. App.2d 396, 405 [ 38 Cal. Rptr. 684 , 8 A.L.R.3d 1108 ]; Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal. App.2d 850, 857 [ 1 Cal. Rptr. 733 ].) Plaintiff, of course, would not be prejudiced by the erroneous instruction requiring a findin

1972However, under the authority of Code of Civil Procedure section 906, [21] we may review the trial court's decision that California law should apply in order to determine whether plaintiff was or was not prejudiced by the trial court's questioned instruction. ( Mott v. Horstmann, 36 Cal.2d 388, 393 [ 224 P.2d 11 ]; Auer v. Frank, 227 Cal. App.2d 396, 405 [ 38 Cal. Rptr. 684 , 8 A.L.R.3d 1108 ]; Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal. App.2d 850, 857 [ 1 Cal. Rptr. 733 ].) Plaintiff, of course, would not be prejudiced by the erroneous instruction requiring a findin

1972However, under the authority of Code of Civil Procedure section 906, [21] we may review the trial court's decision that California law should apply in order to determine whether plaintiff was or was not prejudiced by the trial court's questioned instruction. ( Mott v. Horstmann, 36 Cal.2d 388, 393 [ 224 P.2d 11 ]; Auer v. Frank, 227 Cal. App.2d 396, 405 [ 38 Cal. Rptr. 684 , 8 A.L.R.3d 1108 ]; Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal. App.2d 850, 857 [ 1 Cal. Rptr. 733 ].) Plaintiff, of course, would not be prejudiced by the erroneous instruction requiring a findin

1972However, under the authority of Code of Civil Procedure section 906, [21] we may review the trial court's decision that California law should apply in order to determine whether plaintiff was or was not prejudiced by the trial court's questioned instruction. ( Mott v. Horstmann, 36 Cal.2d 388, 393 [ 224 P.2d 11 ]; Auer v. Frank, 227 Cal. App.2d 396, 405 [ 38 Cal. Rptr. 684 , 8 A.L.R.3d 1108 ]; Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal. App.2d 850, 857 [ 1 Cal. Rptr. 733 ].) Plaintiff, of course, would not be prejudiced by the erroneous instruction requiring a findin

1969Under these circumstances error, if any, in the questioned instruction must be deemed nonprejudicial. [3] Defendant next predicates error on the omission from the trial court's instructions of CALJIC No. 303-A (new). [fn. 3] This instruction, entitled "Diminished Capacity to Premeditate," is based on People v. Wolff (1964) 61 Cal.2d 795, 821 [ 40 Cal.Rptr. 271 , 394 P.2d 959 ].

1969Under these circumstances error, if any, in the questioned instruction must be deemed nonprejudicial. [3] Defendant next predicates error on the omission from the trial court's instructions of CALJIC No. 303-A (new). [fn. 3] This instruction, entitled "Diminished Capacity to Premeditate," is based on People v. Wolff (1964) 61 Cal.2d 795, 821 [ 40 Cal.Rptr. 271 , 394 P.2d 959 ].

1954The questioned instruction permitted but did not compel such a conclusion. *520 The situation here is very like that which obtained in Burr v. Goss, 91 Cal.App.2d 351, 356 [ 205 P.2d 61 ]. (5) Defendant complains of an instruction that the jury may, in assessing damages, if any, take into consideration the decrease in the value of the dollar, upon the ground that it merely calls attention to an otherwise commonplace fact and unfairly and unjustly tends to increase the jury award.

1954The questioned instruction permitted but did not compel such a conclusion. *520 The situation here is very like that which obtained in Burr v. Goss, 91 Cal.App.2d 351, 356 [ 205 P.2d 61 ]. (5) Defendant complains of an instruction that the jury may, in assessing damages, if any, take into consideration the decrease in the value of the dollar, upon the ground that it merely calls attention to an otherwise commonplace fact and unfairly and unjustly tends to increase the jury award.

1954This point is not well taken, for the reasons given in Burke v. City & County of San Francisco, 111 Cal.App.2d 314, 320-322 [ 244 P.2d 708 ]. (6) Finally, defendant takes exception to the giving of an instruction concerning the cost of medical care.

1954This point is not well taken, for the reasons given in Burke v. City & County of San Francisco, 111 Cal.App.2d 314, 320-322 [ 244 P.2d 708 ]. (6) Finally, defendant takes exception to the giving of an instruction concerning the cost of medical care.

1988All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .” (Orig. italics.)’ [Citation.]” (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051 [ 236 Cal.Rptr. 526 ], quoting Rossiter v. Benoit (1979) 88 Cal.App.3d *1533 706, 712 [ 152 Cal.Rptr. 65 ]; see Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [ 243 Cal.Rptr. 298 ]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 418, pp. 415-416.) A corollary of this rule is that, “The giving of an instruction will not be reviewed by a

1958(Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 27 [ 276 P. 1017 ].) “(2) The refusing of an instruction will not be reviewed by an appellate court unless the record sets forth the requested instruction.

1955But so long as a reasonable or even fairly debatable justification under the law is shown for the action taken, that action will not be set aside, even if, as a question of first impression, the appellate court might feel inclined to take a different view.” In Bolton v. Martin, 126 Cal.App.2d 178 [ 271 P.2d 991 ], in discussing an appeal from an order granting a new trial because of an erroneous instruction, this court stated (p. 180): “Thus, on this appeal, the action of the trial court in granting the motion for a new trial because of the giving of the challenged instruction can be reversed

1955But so long as a reasonable or even fairly debatable justification under the law is shown for the action taken, that action will not be set aside, even if, as a question of first impression, the appellate court might feel inclined to take a different view.” In Bolton v. Martin, 126 Cal.App.2d 178 [ 271 P.2d 991 ], in discussing an appeal from an order granting a new trial because of an erroneous instruction, this court stated (p. 180): “Thus, on this appeal, the action of the trial court in granting the motion for a new trial because of the giving of the challenged instruction can be reversed

2021At the hearing, the trial court, citing People v. Winbush (2017) 2 Cal.5th 402, 469 (Winbush), noted the prior accusation of rape must be “shown to be false.” The court questioned if the defense could make that showing through, as proposed, the testimony of pastor’s wife: “The only way that a true false allegation can be proved is if the [the pastor] would be willing to come into this courtroom and sit in that chair and say we had a consensual relationship, I never forced her to do anything.” Defense counsel countered that the first victim “came to [the pastor’s wife’s] front door and told her

2012The City of Long Beach argued that exempting only criminal prosecutions from anti-SLAPP motions would “exalt form over substance.” (Ibid.) The appellate court, relying on People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 446-447 [ 104 Cal.Rptr.2d 618 ], concluded: “There is no question that subdivision (d) applies to civil enforcement actions.” However, the court questioned whether the exception “applies only to those civil enforcement actions initiated in the name of the People of the State of California or, notwithstanding the literal language of the subdivision

2012The City of Long Beach argued that exempting only criminal prosecutions from anti-SLAPP motions would “exalt form over substance.” (Ibid.) The appellate court, relying on People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 446-447 [ 104 Cal.Rptr.2d 618 ], concluded: “There is no question that subdivision (d) applies to civil enforcement actions.” However, the court questioned whether the exception “applies only to those civil enforcement actions initiated in the name of the People of the State of California or, notwithstanding the literal language of the subdivision

2010Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citation.]’ ” (People v. Torres (2008) 163 Cal.App.4th 1420, 1431 [ 78 Cal.Rptr.3d 444 ].)

2010Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citation.]’ ” (People v. Torres (2008) 163 Cal.App.4th 1420, 1431 [ 78 Cal.Rptr.3d 444 ].)

2010Rules Applicable to Erroneous or Misleading Jury Instructions and Special Verdict Questions When a new trial is granted based on an erroneous or misleading jury instruction, the order “will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. [Citations.]” (Christian v. Bolls (1970) 7 Cal.App.3d 408, 415 [ 86 Cal.Rptr. 545 ].) “ ‘If the challenged instruction was erroneous in any degree, or even if it is only “fairly debatable” that such instruction may have been misleading, the broad

2010Rules Applicable to Erroneous or Misleading Jury Instructions and Special Verdict Questions When a new trial is granted based on an erroneous or misleading jury instruction, the order “will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. [Citations.]” (Christian v. Bolls (1970) 7 Cal.App.3d 408, 415 [ 86 Cal.Rptr. 545 ].) “ ‘If the challenged instruction was erroneous in any degree, or even if it is only “fairly debatable” that such instruction may have been misleading, the broad

2010(See People v. Stewart (1988) 202 Cal.App.3d 759 [ 248 Cal.Rptr. 907 ].” {DeLouize, (DeLouize, 32 Cal.4th at p. 1228, fn. 1 .) In People v. Stewart, the court questioned whether the rule prohibiting reconsideration of the denial of a new trial motion was jurisdictional. {People (People Stewart, supra, 202 Cal.App.3d at pp. 762-763.) See footnote, ante, page 227. “ ‘When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme.