California Criminal Trial Manual

• Arraignment on Information: 15-Day Rule
  • Information must be filed w/n 15 days of PH holding (PC 739, PC 860.)
  • PC 739 requires an information to be filed within 15 days after a defendant is committed (held to answer) by a magistrate following a preliminary hearing. (See PC 872.)
• TNW JT (Misdo): 30/45-Day Rule
  • Out-of-custody Arraignment: 45 calendar days. (PC 1382(a)(3).)
  • In-Custody Arraignment: 30 calendar days (PC 1382(a)(3).)
  • Withdraw TW (regardless of custody status): 30 calendar days
  • Continue past last day? YES, if good cause is shown. (People v. Sutton (2010) 48 Cal.4th 533, 545; PC 1382(a).)
• TNW JT (Felony): 60-Day Rule
  • Trial must be set no more than 60 calendar days after the filing of the information absent a TW or good cause. (PC 1049.5; PC 1050; PC 1382(a)(2).)
  • Last Day: When is a D ‘brought to trial’ for 1382: These principles compel the holding that an accused is “brought to trial” within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780.)
  • Continue past last day? YES, if good cause is shown. (People v. Sutton (2010) 48 Cal.4th 533, 545; PC 1382(a).)
  • Failure to abide by 60-day rule + no TW + no good cause -> D entitled to dismissal. (PC 1382.)
• TNW Felony JT 10-Day Grace Period (PC 1382(a)(2)(B))
  • Whenever D requested or agreed to begin a trial on a date beyond the applicable period (i.e. the 60th day), the case must be brought to trial no later than 10 days after that date. (People v. Brown (2023) 14 Cal.5th 530, 539.)
  • Requirements:
    • (1) D agreed, express or implied, to a trial date beyond the applicable period; and
    • (2) D is objecting to further postponement
  • Trailing Day-To-Day Attributable to People Does Not Restart The Clock. A defendant’s failure to object to a prosecutor’s request to trail from day to day within the 10-day grace period does not initiate a new 10-day period each time the case is trailed. (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 978.)
  • Codefendants. “[T]here is always good cause to continue a codefendant’s trial within section 1382’s 10-day grace period to maintain joinder…no particularized or case-specific showing or finding of good cause is required.” (Smith v. Superior Court (2012) 54 Cal.4th 592, 606.)
  • Last Day: if it lands on weekend or court holiday –> last day is next available court date. (People v. Taylor (1975) 46 Cal.App.3d 513, 534-535; Code Civ. Proc. § 12a.)
  • 10-Day Grace Period also applies to TNW misdemeanor JTs. (PC 1382(a)(3)(B).)
• Last Day: When is a D ‘brought to trial’ for 1382.
  • These principles compel the holding that an accused is “brought to trial” within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780.)
    • See also People v. Hajjaj (2010) 50 Cal.4th 1184, 1196 [affirming that this test is the proper analysis for determining when a D is ‘brought to trial.’]
      • Courtroom that cannot be reached by the parties prior to close of business is for practical and legal purposes unavailable for bringing the accused to trial.
  • Compare with whether trial is ‘in progress’ for PC 1050(g)(2). A trial is ‘in progress’ for purposes of [S]ection 1050(g)(2) if the case at issue has been called for trial by a judge who is available and ready to try the case to conclusion, the court has committed its resources to the trial, and the parties are ready to proceed.” (Hernandez v. Superior Court (2025) 114 Cal.App.5th 684, 692.)
• For Exceptions to Statutory Deadlines, see Continuances

• D in criminal prosecution is guaranteed right to a jury trial. (People v. Weaver (2012) 53 Cal.4th 1056, 1071.)
• Jury trial may be waived by consent of both parties. (Cal. Const., art. I, § 16.)
• Express Waiver Required. (People v. Holmes (1960) 54 Cal.2d 442, 443-444.)
• Knowing & Voluntary Waiver. A court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, is made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. (People v. Daniels (2017) 3 Cal.5th 961, 990.)
• Necessary Waiver Colloquy. Advisement on the basic mechanics of a jury trial “including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence.” (People v. McCray (2023) 98 Cal.App.5th 260.)

• Personal service is made by “personally” delivering a copy of the subpoena to the witness. (PC 1328(a).)
  • May be made by any person except the defendant. (Ibid.)
• Minor Witness. Subpoena service shall be made on the minor’s parent, guardian, etc. (PC 1328(b)(1).)
• Peace Officer Witness. For procedure see PC 1328(c)-(g).
• Subpoena Service via Email (PC 1328d.)
  • Must acknowledge receipt & identify themselves by reference to their DOB & CDL
  • Failure to comply w/ email subpoena may be punished as a contempt; but no body attachment if witness FTAs

• PC 1326(c): person/entity responding to a third party SDT in a criminal case must deliver the subject materials to the clerk of court so that the court can hold a hearing to determine whether the requesting party is entitled to receive them.
  • When the requesting party is defendant, the court may conduct that hearing in camera.
• Documents and records in the possession of nonparty witnesses and government agencies other than the agents/employees of the prosecutor are obtainable by SDT. (People v. Superior Court (Barrett) (2010) 80 Cal.App.4th 1305, 1318.)
• Trial courts are authorized, indeed obligated, to regulate the use of subpoenas to obtain privileged third-party discovery. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 751.)
• Court maintains control over the discovery process, for if the third party “objects to the disclosure of the information sought, the party seeking the information must make a plausible justification or a good cause showing of need therefor.” (Kling v. Superior Court (2010) 50 Cal.4th 1068.)
• Assuming the third party moved to quash a SDT, the burden would be the on the requesting party to demonstrate the materials he seeks are relevant. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1320.)
• Alhambra factors. (Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329.)
  • Trial court must consider these seven factors in considering whether good cause has been shown to enforce a subpoena that has been challenged by a motion to quash:
  • (1) Plausible justification
    • Has the D carried his burden of showing a plausible justification for acquiring documents from a third party?
    • Although the D does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the trial, he does have to show some better cause for inspection than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime. (Ballard at p. 167.)
  • (2) Overly broad. Is the sought material adequately described and not overly broad?
  • (3) Reasonably available. Is the material reasonably available to the entity from which it is sought (and not readily available to the defendant from other sources)?
  • (4) Rights/Interests. Would production of requested materials violate a third party’s “confidentiality or privacy rights” or intrude upon “any protected governmental interest”?
    • For crim defense SDT, protection of subject of a subpoena’s right to be free from unreasonable search and seizure constitutes a legitimate governmental interest.
  • (5) Timely. Is defendant’s request timely?
  • (6) Unreasonable Delay. Would the time required to produce the requested information necessitate an unreasonable delay of defendant’s trial?
  • (7) Unreasonable Burden. Would production of the records containing the requested information place an unreasonable burden on the third party?

• A prospective juror may be excused for cause based on actual bias. (Code Civ. Proc. § 225(b)(1).)
• Actual bias includes: the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party. (People v. Horning (2004) 34 Cal.4th 871, 898.)
• A juror may be constitutionally excused for cause if the juror’s views would “prevent or substantially impair the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath. (People v. Armstrong (2019) 6 Cal.5th 735, 750.)
  • The duties of a juror include the duty to set aside personal feelings and opinions and decide the case based solely on the evidence and instructions provided by the court.
  • And one of the standard instructions given here and provided to all jurors in criminal cases contains the well-settled admonition not to let bias or sympathy influence their decision. (CALCRIM 101, 200.)
• First Challenge for Cause: Defense. (CCP § 226(d).)

• First Peremptory: Prosecution. (CCP § 231(d).)
• Number of Challenges: 10 per side. (CCP § 231(a).)
  • Co-Ds: 10 “jointly” among Co-Ds + 5 separate peremptory challenges per Co-D. People have same total # of separate challenges as combined Co-Ds. (CCP § 231(a).)
    • Ex: 3 Co-D case, each side has 25 peremptory challenges (10 joint, 5 separate per Co-D)
  • Life Case: 20 per side. (CCP § 231(a).)
• Code of Civil Procedure § 231.7(a). “[A] party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race…”
  • This framework was enacted “to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection because studies showed that the existing Batson/Wheeler analysis … was inadequate to prevent racial discrimination.” (People v. Jimenez (2024) 99 Cal.App.5th 539, 539-540.)
  • The statute prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. (Id. at p. 540.)
• Framework
  • (A) Objection. The party or court on its own motion may object to the improper use of a peremptory challenge. (CCP § 231.7(b).)
  • (B) Reason for Challenge. The party exercising challenge states the reason for exercising the challenge. (CCP § 231.7(c).)
    • If reason is listed under CCP § 231.7(e), Court must engage in Presumptive Invalidity Analysis
    • If reason is NOT listed under CCP § 231.7(e), Court proceeds to Totality of Circumstances Analysis
  • (C) Court Evaluates Reason.
    • Step 1: Analysis for Presumptively Invalid Reason. (CCP § 231.7(e), see below)
      • If reason for exercising peremptory challenge is listed under CCP § 231.7(e), the peremptory challenge is presumed to be invalid.
      • If presumption is overcome –> move to Step 2
    • Step 2: Totality of the Circumstances Analysis. “The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances,” considering only the reasons actually given. (CCP § 231.7(d)(1).)
      • “If the court determines there is a substantial likelihood that an objectively reasonable person would view race…as a factor in the use of the peremptory challenge, then the objection shall be sustained. (CCP § 231.7(d)(1).)
      • Substantial likelihood means more than a mere possibility but less than a standard of more likely than not. (CCP § 231.7(d)(2)(B).)
      • “[A]n objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California,” and “‘unconscious bias’ includes implicit and institutional biases.”(CCP § 231.7(d)(2)(A), (C).)
• Court Evaluation Where CCP § 231.7(e) Triggered (Presumptive Invalidity Analysis)
  • Overcoming Presumption. A peremptory challenge for a reason listed in CCP 231.7(e) is presumed to be invalid “unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race…and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.” (CCP 231.7(e).)
    • Clear and Convincing Evidence to overcome the presumption exists when the court, “bearing in mind conscious and unconscious bias,” determines “that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case.” (CCP 231.7(f).)
  • Presumptively Invalid Reasons (CCP 231.7(e).)
    • Negative experience with law enforcement or criminal legal system
    • Express belief that law enforcement engage in racial profiling or criminal laws are enforced in a discriminatory manner
    • Has a close relationship with people stopped, arrested, or convicted of a crime
    • Prospective juror’s neighborhood
    • Having a child outside of marriage
    • Receiving state benefits
    • Not being a native English speaker
    • Ability to speak another language
    • Dress, attire, or personal appearance
    • Employment in a field that is disproportionately occupied by members of a Protected Group
    • Lack of employment or underemployment of prospective juror or their family member
    • Prospective juror’s apparent friendliness with another prospective juror of Protected Group
    • Inattentive, or staring or failing to make eye contact
    • Exhibited either a lack of rapport or problematic attitude, body language, or demeanor
    • Provided unintelligent or confused answers
  • Demeanor-Based Reasons For Exercising Peremptory. Presumptively invalid demeanor-based reasons (italicized above) are presumptively invalid “unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party” and “the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.” (CCP 231.7(g)(2).)
  • Caselaw interpreting § 231.7(e)
    • Presumption of Invalidity Overcome
      • (People v. Jimenez (2024) 99 Cal.App.5th 534.)
        • Latina juror expressed belief about racial bias of LEOs, and repeatedly acknowledged she would have difficulty setting aside her bias against LEOs to fairly consider their testimony, despite her initial assurances that she could be fair. White juror expressed similar sentiment. Prosecutor exercised for-cause challenge to white juror, and peremptory as to Latina juror.
        • Held, reason was presumptively invalid (under § 231.7(e)), but there was clear and convincing evidence to overcome the presumption of invalidity.
        • Held, under the totality of the circumstances, no substantial likelihood an objectively reasonable person would view cognizable group membership as a factor in the prosecutor’s peremptory challenge.
          • Consistently sought to excuse or challenge prospective jurors who expressed a potential inability to be fair
          • Did not seek to remove all Latino prospective jurors
      • (People v. Gonzalez (2024) 104 Cal.App.5th 1.)
        • P used peremptory challenge on juror who expressed bitterness towards LEO for its handling of his cousin’s murder, was visibly emotional speaking about the situation to the point that he struggled to get words out, indicated multiple times he did not know whether he could be impartial towards LEO
        • Held, “an objectively reasonable person would view challenge of juror due to his feelings on law enforcement as related to his ability to be fair based on his repeated acknowledgement that he would have difficulty setting aside his bias and being fair.”
      • (People v. Sanmiguel (2024) 105 Cal.App.5th 880.)
        • “No matter a person’s background, race, or economic standing, if the juror does not pay attention, the juror does not belong on any jury…no capable attorney would fail to challenge such a juror unless the attorney had what is known in the trade as a dead-bang loser.”
    • Presumption of Invalidity NOT overcome
      • (People v. Aguilar (Jan. 2, 2026) D083172.)
        • Hypothetical re: In-and-Out, person gets a burger, sits at a table, picks up burger. Whether entered store with intent to eat burger.
        • P’s stated reason was juror “kept going back and forth with her answers” and therefore “struggling” with the concept of intent to eat the burger. Trial Court agreed, found juror’s answers “equivocal” and indicative of confusion on the issue of intent
        • Held, juror confusion is a presumptively invalid reason for a peremptory challenge.
        • Held, trial court’s finding of juror confusion is unsubstantiated by the record, presumption of invalidity not overcome.
      • (People v. Uriostegui (2024) 101 Cal.App.5th 271.)
        • P used peremptory challenge w/ “Spanish surname” based on her lack of life experience, and not currently employed
        • Held, lack of life experience was a presumptively invalid reason for excusing the juror, as it was based in part on the juror’s lack of employment.
        • P failed to make any showing it was highly probable that an objectively reasonable person would view this reason as unrelated to juror’s perceived ethnicity.
        • P failed to make any showing that the juror’s lack of employment bore on her ability to be fair and impartial
    • Presumption of Invalidity Analysis Inapplicable
      • (People v. Garcia (Oct. 9, 2025) A165535.)
        • Juror’s youth, lack of life experience, and views about allegations of sexual assault against a famous athlete, Trial Court held are NOT presumptively invalid reasons for excusing juror (Court of Appeal declined to address whether trial court erred in this conclusion)
• Consequences of sustained objection to peremptory challenge. Court may either:
  • Quash jury venire and start jury selection anew
  • If granted after jury is impaneled, declare a mistrial
  • Seat the challenged juror
  • Provide objecting party additional challenges
  • Provide another remedy the Court deems appropriate

• Where judge withholds ruling on MIL/402: where the court rejects evidence temporarily or withholds a decision as to its admissibility, the party desiring to introduce the evidence should renew his offer, or call the court’s attention to the fact that a definite decision is desired. (People v. Holloway (2004) 33 Cal.4th 96, 133.)

*A “leading question” is a question that suggests to the witness the answer that the examining party desires. (EC 764.) In general, no leading questions on direct or redirect. (EC 767(a)(1).) Leading questions may be permitted on direct/redirect “where the interests of justice otherwise require.” (EC 767(a).)

**This objection may be raised simply by stating EC 352. The objection contends that the probative value of the contested evidence is substantially outweighed by the risk of unfair prejudice

***This is a frequently used objection, that simply asserts whatever requirements must be met before an item of evidence is admissible, have not yet been satisfied.

****This objection references any pretrial motions in limine the Court ruled on, contending the opposing party is attempting to elicit evidence or engage in conduct that was either excluded or prohibited by an earlier Court ruling.

• PC 1089 sets for the procedure for removing a sitting juror. (People v. Boyette (2002) 29 Cal.4th 381, 462.)
• Good Cause to exists to discharge a juror when:
  • Juror loses his or her ability to render a fair and impartial verdict based on the evidence presented at trial. (People v. Warren (1986) 176 Cal.App.3d 324, 327.)
  • Juror who refuses to deliberate, on the theory that such a juror is ‘unable to perform his duty.’ (People v. Cleveland (2001) 25 Cal.4th 466, 474.)
  • Juror who is actually biased is unable to perform the duty to fairly deliberate and is subject to discharge. (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)
• Demonstrable Reality. A juror’s ‘inability to perform’ his or her duty must appear on the record as a demonstrable reality. (People v. Compton (1971) 6 Cal.3d 55, 60.)
• Refusal to Deliberate. Consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. (People v. Barton (2020) 56 Cal.App.5th 496, 510-511.)
  • Expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view
  • Refusing to speak to other jurors
  • Attempting to separate oneself physically from the remainder of the jury
• Not a refusal to deliberate:
  • Juror who relies upon faulty logic
  • Disagrees with the majority of the jury as to what the evidence shows
  • Disagrees with the majority of the jury as to how the law should applies to the facts
  • Disagrees with the majority as to the manner in which deliberations should be conducted
  • A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. (People v. Cleveland (2001) 25 Cal.4th 466, 485.)
• Bias.
  • Actual bias is “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party. (Code Civ. Proc., sec. 225, subd. (b)(1)(C).)
  • An impartial juror is someone “capable and willing to decide the case solely on the evidence presented at trial.” (People v. Nesler (1997) 16 Cal.4th 561, 581.)
  • Bias in a juror misconduct process means “a tendency to unreasonably favor one aspect of the case over others, separate and apart from the juror’s consideration of the evidence and the law applicable to the case.” (TRC Operating Co., Inc. v. Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, 1087.)
  • Bias Against Law Enforcement. A juror “who is biased against law enforcement is unable to perform his or her duty within the meaning of section 1089 and may be removed. (People v. McGhee (2025) 17 Cal.5th 612; People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)
• Procedure
  • Step 1: (optional) Trial court reinstructs jurors regarding their duty to deliberate and to permit the jury to continue deliberations before making further inquiries.
  • Step 2: court conducts a reasonable inquiry into allegations of misconduct “where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case.” (People v. Cleveland (2001) 25 Cal.4th 466, 478.)
    • Inquiry focuses on whether jurors’ testimony supports the conclusion that a juror is refusing to deliberate. (People v. Barton (2020) 56 Cal.App.5th 496, 510.)

• PC § 1043: rules governing proceeding with a jury trial in D’s absence.
• D’s right to be present at trial is not absolute; it may be expressly or impliedly waived. (People v. Espinoza (2016) 1 Cal.5th 61, 72.)
• Trial may commence in D’s absence if Court finds a clearly established voluntary absence.
  • Clearly established voluntary absence if:
    • (1) “A defendant at liberty remains away during his trial”
    • (2) “He must be aware of the processes taking place, of his right and of his obligation to be present, and”
    • (3) “He must have no sound reason for staying away.”
      • (Taylor v. United States (1973) 414 U.S. 17, 19-20, fn. 3.)
• Burden of proof for “clearly established voluntary absence” appears to be clear & convincing evidence. (People v. Ramirez (2022) 14 Cal.5th 176, 189.)
  • Clear and convincing evidence standard “requires a finding of high probability” that a fact is true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.)
• Noncapital I/C D, Present at Start of Trial, Absent Later. A trial court may continue a trial without first obtaining D’s written or oral waiver of the right of presence – if other evidence indicates D has chosen to be absent voluntarily. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1206.)
• People v. Ramirez (2022) 14 Cal.5th 176, 189. Clearly established voluntary absence b/c:
  • Aware of process. D was present first day of trial and ordered to appear following day
    • -> Held, clear & convincing evidence supports finding D was aware of processes taking place and knew of his right and obligation to be present the next day
  • No sound reason for staying away.
    • D FTA’d & had ingested illicit drugs prompting an emergency response
    • Trial court sent officer to D’s address to arrange for D to come to court
    • D was sufficiently lucid to assess whether he needed medical treatment (refused)
    • This was the second time D FTA’d on the day of trial (first time claimed illness)
    • Held, clear & convincing evidence supports finding there was no sound reason for D failing to appear on the second day of trial.
• Voluntarily ingesting illicit drugs. A D who fails to appear at trial after voluntarily ingesting illegal drugs is not necessarily voluntarily absent, as a matter of law, for purposes of PC 1043. (People v. Ramirez (2022) 14 Cal.5th 176.)
• Voir Dire = critical stage D has right to be present at. (People v. Wall (2017) 3 Cal.5th 1048, 1059.)

• Use PICKS
  • Plausibility: how plausible is the story?
  • Inconsistencies: anything inconsistent with what the D said before?
  • Credibility: priors, admissions about lying
  • Knowledge: probe to see if D knows what he’s talking about
  • Supportive Facts: get D to corroborate helpful facts/general layout
• Asking D if other witnesses are lying.
  • In General: It is misconduct to ask a D if other witnesses are lying where the question serves no evidentiary purpose and serves only to berate the D and inflame the passions of the jury. (People v. Zambrano (2004) 124 Cal.App.4th 228, 242.)
  • But where such questions can serve an evidentiary purpose, a “party who testifies to a set of facts contrary to the testimony of others may be asked to clarify what his position is and give, if he is able, a reason for the jury to accept his testimony as more reliable. (People v. Chatman (2006) 38 Cal.4th 344, 377-384.)
  • Permissible to question defendant “more specifically whether he had any reason to believe the other witnesses would make up lies against him…[where D] took the stand and claimed the witnesses against him were wrong in a way that could only result from deception or bias.” (People v. Lund (2021) 64 Cal.App.5th 1119, 1150.)

• Corpus delicti consists of two elements: (1) the injury or loss or harm; and (2) a criminal agency causing the harm. (People v. Dorsey (1974) 43 Cal.App.3d 953, 961.)
  • “Criminal Agency” relates to acts in violation of law. Proof of criminal agency requires evidence from which it might be concluded that the injury or harm resulted from the intentional act of a human being. (People v. Ott  (1978) 84 Cal.App.3d 118, 131.)
• Proof of corpus delicti need not be BRD. Only a slight prima facie showing is necessary, and such showing may also be established by circumstantial evidence. (Ibid).
• The identity of the perpetrator is not a part of the corpus delicti. (People v. Ott (1978) 84 Cal.App.3d 118, 131.)
  • Prosecutor need not ID the perp or connect the D to the crime. All that need be shown by independent evidence before a confession may be introduced is that a crime has been committed by someone.

• HGN
  • Not offering HGN to establish BAC
  • Offering HGN as a reliable indicator of alcohol intoxication and impairment
    • People v. Joehnk (1995) 35 Cal.App.4th 1488: HGN as an indicator of intoxication
    • People v. Ojeda (1990) 225 Cal.App.3d 404: Officer may testify to relationship between HGN and alcohol intoxication and an opinion that the subject was or was not under the influence
• PAS Test
  • Authority to administer PAS. (VC 23612(h).)
  • Relevance: The Bury court upheld the admission of PAS test results into evidence not just for the mere presence of alcohol, but also for the concentration measured by the test. (People v. Bury (1996) 41 Cal.App.4th 1194.)
    • Moreover, the numerical value of the PAS sample was admissible to establish intoxication. The Bury court furthered approved of instructing the jury that it could infer the defendant was intoxicated if a chemical analysis of defendant’s breath showed a BAC of at least .08. The only evidence of a numerical BAC value in Bury was PAS test itself.
  • Foundation
    • (People v. Williams (2002) 28 Cal.4th 408.) The court ruled the evidence of a PAS test result admissible despite a series of Title 17 violations, including failing to check the PAS instrument for accuracy at least every 10 calendar days or after 150 subjects, failing to comply with the 15-minute pretest observation period, and failing to obtain the two requisite breath samples.
    • Foundation for admissibility can be alternatively satisfied by demonstrating:
      • Instrument was properly functioning
      • Test was properly administered
      • The operator was qualified to administer the test
  • Reporting Breath-Test results to the third decimal point
    • People v. Wood (1989) 207 Cal.App.3d Supp. 11, 16-17: the third decimal place of a breath-test results is relevant in a DUI trial and admissible.
    • Our common sense and experience as trial judges compel the conclusion that the “third decimal place” number is relevant (see EC 210.) or else prosecutors would not seek utilization of it when it is high and criminal defense attorneys would not seek utilization of it when it is low.

• Threshold question: whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination. (People v. Stevens (2007) 41 Cal.4th 182, 200.)
• Substantial Evidence Standard: ‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’” (People v. Stevens (2007) 41 Cal.4th 182, 200.)

• Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence. (People v. Fayed (2020) 9 Cal.5th 147, 207.)
• Prosecutors have wide latitude in closing argument to comment on the evidence and reasonable inferences based on the evidence. (People v. Leon (2015) 61 Cal.4th 569, 606.)
• BUT: it is improper to make arguments to the jury that give it the impression that ’emotion may reign over reason,’ and to present ‘irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.’” (People v. Leon (2015) 61 Cal.4th 569, 606.)
  • As a general rule, a prosecutor may not invite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim. (Ibid.)
• Case Law – Permissible
  • Describing D as someone who enjoyed killing like ” ‘a little kid opening his toys at Christmas’ ” as a ” ‘denizen of the night’ as “the executioner” as “the terminator of precious life” as “a head hunter” and as “the complete and total essence of evil…[with] a cold unyielding heart.” (People v. Harrison (2005) 35 Cal.4th 208, 244-246.)
  • Describing victim as suffering a “savage beating” and how it reflected defendant’s “violent capabilities” were fair comments on the evidence. (People v. Martinez (2010) 47 Cal.4th 911, 957.)
  • Defendant as “Monster” or “Predator”. Prosecutors’ descriptions of defendants as “monsters” and “predators” were within the wide range of descriptive comment that is permissible during closing argument. (People v. Quintero (2024) 107 Cal.App.5th 1060.)
  • HOWEVER: See Racial Justice Act re: Discriminatory Language
• Case Law – Prosecutorial Misconduct in Closing Argument
  • Facts Outside Record. Statements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct. (People v. Kirkes (1952) 39 Cal.2d 719, 725.)
  • Accusing Defense of Fabricated Defense. To state or imply that defense counsel has fabricated a defense is generally misconduct. (People v. Seumanu (2015) 61 Cal.4th 1293, 1337.)
  • Witness Vouching. “Impermissible ‘vouching’ may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.” (People v. Fierro (1991) 1 Cal.4th 173, 211.)
  • Prosecutor’s Subjective Belief in D’s Guilt. Evidence of a prosecutor’s subjective motivations when prosecuting a case is not relevant, for “it is misconduct for prosecutors to bolster their case by invoking their personal prestige, reputation, or depth of experience, or the prestige of their office, in support of it.” (People v. Bonilla (2007) 41 Cal.4th 313, 336.)
• Comment on Defendant’s Failure to Call Logical Witnesses or Introduce Material Evidence
  • Re: Failure to Call Defense Expert. Prosecutor’s observation “that defendant had failed to adduce expert psychiatric testimony to support the claim that he was depressed and suicidal when he confessed to the crimes” did not constitute prosecutorial misconduct. (People v. Walsh (1993) 6 Cal.4th 215, 263.)
  • Re: Failure to Call Alibi Witness. Prosecutor comment on failure to call alibi witnesses is not misconduct (and not a Griffin error). (People v. Eschevarria (1992) 11 Cal.App.4th 444, 452; People v. Carr (2010) 190 Cal.App.4th 475, 483.)
  • Re: Failure to Call Defense Investigator. Prosecutor comment on defense’s failure to put on a defense investigator to corroborate the providing of inconsistent statements by prosecution witness is not improper. (People v. Lewis (2009) 46 Cal.4th 1255, 1303.)