ONCALL
...Evidence
......Court Control of Proceedings
76 Cards On This Topic:

Trial ct.’s discretion not unlimited, and it had no substantial or principled reasons for denying woman's name change to Candi Bimbo Doll.

Denial of D's 4th request to substitute law firm was abuse of discretion where firm claimed to be prepared for trial, and the court relied on its suspicions D would seek further delay, not inquiring further.

Error to dismiss felony charges due to O's lost dashcam footage where the footage had no exculpatory value and no substantial evidence supported finding D was prejudiced by the delay in prosecution.

Using restraint belt on D during jury selection was harmless error where belt was hidden from view by his shirt and the table covering.

D violates PC §236.1(c) when D attempts, but fails, to traffic an actual minor, even if D lacks specific intent regarding victim's age. Mistake of fact as to age is not a defense to attempted human trafficking under §236.1(c) when victim is a minor.

Although D who takes illicit drugs before trial is not necessarily voluntarily absent, substantial evidence here showed D waived his 6th Amend. right to be present by so doing.

No abuse of discretion in permitting adult Vs of childhood sex abuse to testify with a support dog; neither statute nor caselaw distinguishes between adult and minor V testimony.

A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.

Stun belts are appropriate where Ds made threats and engaged in substantial “nonconforming conduct.”

A judge may ask questions of a witness, but they must be temperate, nonargumentative, and scrupulously fair.

Failure to object that a judge's comments about a witness are explicitly or implicitly biased is not a waiver on appeal.

Leading questions may be appropriate where the witness is hostile or they serve to stimulate or revive the witness’s recollection.

A general objection to the admission of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.

Testimony of expert who conducted additional work after being excused to buttress evidence which had been excluded properly struck.

CALJIC 315's eyewitness witness certainty instruction is potentially misleading; may not be used until Judicial Council reviews it.

D's refusal to participate in lineup properly admitted as consciousness of guilt; probative value outweighed prejudice.

A pinpoint jury instruction need not be given if it is argumentative, duplicative, potentially confusing, or not supported by substantial evidence.

Trial judge's participation in the questioning of the fingerprint expert constituted judicial misconduct.

Testimony D's employees intimidated witnesses in other proceedings properly admitted as rebuttal evidence.

Trial ct.'s judgment properly reversed where prosecutor impermissibly vouched for testifying officers’ credibility.

Error to instruct jury on kill zone theory, but error was harmless as other evidence showed intent to kill.

Error for trial ct. to instruct jury on the natural and probable consequences doctrine for attempted murder in light of Senate Bill No. 1437.

Great bodily injury instruction correctly given where sheriff deputy's injuries consisted of a broken nose and deviated septum and required surgery to repair.

While defendant did not raise a confrontation clause objection to gang expert’s testimony at the time of trial, claim was not forfeited because Sanchez had not yet been decided.

Trial ct. did not err in giving jury instruction that defendant could be convicted of lying-in-wait murder as an aider and abettor based on the natural and probable consequences doctrine.

Kill zone theory instruction supported by sufficient evidence.

Judicial gender bias not found where plaintiffs could not demonstrate judge's behavior was so prejudicial as to deny them a fair trial.

Substantial evidence supported "kill zone" theory instruction.

Defendants' convictions reversed as the natural and probable consequences doctrine does not apply to the crime of attempted murder.

Trial ct. did not err in giving jury instruction that defendant could be convicted of lying-in-wait murder as an aider and abettor based on the natural and probable consequences doctrine.

Instructional error where finding of premeditated and deliberation as an aider and abettor was based on the natural and probable consequences doctrine.

Even if the trial ct. abused its discretion in ordering defendant restrained, no constitutional error where record did not indicate that the jury saw restraints.

No reasonable juror would read CALCRIM No. 850 to mean that expert testimony on intimate partner battering constitutes evidence of guilt of domestic violence or other charges.

CALCRIM No. 850 properly limited the jury's consideration of expert's testimony regarding intimate partner violence.

While gang expert's testimony regarding defendant's prior contacts with police amounted to testimonial hearsay under Sanchez, defendant failed to preserve Sanchez error by objecting.

Murder and attempted murder convictions reversed where there was insufficient evidence to support a jury instruction on the kill zone theory; error prejudicial.

Trial ct. did not err in failing to instruct jury on voluntary manslaughter under a heat of passion theory; even assuming error, it was harmless.

CALCRIM No. 361 may be used when a testifying defendant has failed to explain or deny matters within the scope of cross-examination, not simply those matters actually asked about on cross-examination.

CALCRIM No. 361 did not violate defendant's due process right to a fair trial by impermissibly favoring the prosecution over the defense.

Defendant's claims of error in trial court's instructing jury with CALCRIM No. 361 not waived by his failure to object.

Error to instruct jury burden was on defendant to prove S was an accomplice where defendant was charged with sexual penetration in concert and rape in concert for sexually assaulting victim with S; error harmless.

Trial ct. properly declined to give accident victim-plaintiff's proposed negligence per se instruction where truck driver's negligent driving was not the proximate cause of the accident.

Trial ct. was not required to instruct the jury on mistake of fact in connection with defendant's crime of rape in concert.

CALJIC No. 2.90 (Presumption of Innocence, Reasonable Doubt, Burden of Proof) passes judicial muster.

No instructional error if the court tells the jury the prosecution has to prove an element not required by law and then fails to properly define the element.

Where D was convicted and his case was pending appeal when a new law gave the trial ct. discretion to strike certain sentencing enhancements, D was entitled to not only remand but also a hearing with counsel present.

Trial ct. erroneously instructed jury that defendant did not need to know he was deterring or resisting a police officer to be convicted under PC §69; error prejudicial and conviction reversed.

A defendant charged with murder on the theory he committed a homicide while driving under the influence is not entitled to an instruction on lesser included offenses.

Given defendant's persistent and severely disruptive behavior during his criminal trial, it was not error to exclude him from the courtroom.

Trial ct. erred in giving design of the driveway instruction; error was prejudicial to plaintiff.

Jury instructions erroneous where they suggested that the jury could properly conclude that a box cutter is an inherently dangerous weapon.

Defendant's brief refusal to appear at trial did not have a tendency in reason to prove consciousness of guilt, and should have been excluded as irrelevant.

Defendant did not forfeit his right to appeal introduction of evidence showing consciousness of guilt where counsel repeatedly and at length argued that its admission was state law error.

Objections are not necessary to preserve appellate review of consciousness of guilt instructions.

Where defendant objected to evidence on various grounds, on appeal defendant may argue that an additional legal consequence of the asserted error is a violation of due process.

Defendant's right to cross-examination under Crawford was not violated by admission of a note from the murder victim to his wife where it was not left for purposes of criminal investigation or prosecution.

Prosecutor did not commit Griffin error when he stated that defendant, who did not testify on his own behalf, did not read certain newspaper articles.

Trial ct. did not err in not permitting defendant to impeach plaintiff with portions of a deposition transcript where transcript was not lodged with court pursuant to local rule.

Victim need not include details of all alleged abuse so long as alleged abuser is placed on notice of the general allegations.

Where asserted instructional error was not a contradiction regarding the elements of a crime, defendant's substantial rights were not affected and defendant forfeited issue on appeal by not objecting.

Conviction reversed for instructional error where the jury was left confused as to whether a crime was still ongoing at the time of defendant's alleged participation in it.

Prosecutor's opening statement that defendant would testify did not amount to misconduct where defendant's counsel made assurances defendant would testify but defendant then abandoned that strategy.

Trial ct. erred in not sua sponte instructing the jury on simple assault as a lesser included offense of assault with a deadly weapon by an inmate where the evidence warranted the instruction.

Prosecutorial misconduct occurred during closing argument when prosecutor offered an opinion on the credibility of his correctional officer witnesses based on facts outside of the record.

Conviction for felonious taking or driving a vehicle reversed where jury did not receive instruction that vehicle must be worth more than $950, and error was prejudicial.

Trial ct. did not err when it instructed the jury that D could be convicted of resisting, obstructing or delaying a police officer if the jury found he stepped in front of an officer as he was writing a citation.

Chiu was not violated where jury instruction stated each defendant must be found to have acted with premeditation and deliberation in order to be convicted of first degree murder.

Trial ct. did not err in refusing to give a voluntary intoxication instruction for a general intent crime against property.

Trial ct. committed no error in its jury instructions in disability harassment case.

Trial ct. did not err in failing to require unanimity from the jury on the theory of first-degree murder under which it convicted defendant.

Jury instructions did not undermine and dilute the jury's duty to determine defendant's guilt beyond a reasonable doubt, nor did instructions shift the prosecution's burden of proof onto defendant.

Trial ct. did not err in failing to give a sua sponte instruction on lesser conspiracy offenses where the prosecution's accusatory pleading contained no overt acts supporting these offenses.

Failure to instruct on murder with malice aforethought, lesser included offenses and applicable defenses was harmless error where the jury resolved the relevant factual disputes through its felony-murder special circumstance finding.

Confrontation clause and Sanchez arguments forfeited because trial counsel failed to make a specific objection and change in law made by Sanchez was foreseeable.

Even though D's case was tried before Sanchez was decided, failure of his counsel to make a hearsay objection constituted forfeiture where pre-Sanchez cases indicated that an expert's testimony to hearsay was objectionable.

Condition imposing warrantless search of M's media reasonably likely to concern boasting about drug use and drug is proper, but overbroad in requiring he provide passwords to other digital accounts.