Jury instruction regarding possible inferences to be drawn from a defendant’s false statements relating to the “charged” offense, does not create a presumption of guilt as to that crime. A jury found Burton guilty of two counts of first degree murder and found true special circumstance allegations and deadly weapon enhancements. One issue on appeal challenged the “false statements” jury instruction (CALCRIM No. 362) as creating an impermissible inference that Burton committed first degree murder versus a lesser offense. Held: Affirmed. CALCRIM No. 362 provides, in part, if a defendant made a knowingly false or misleading statement before trial relating to the “charged crime,” that conduct may reflect an awareness of guilt of “the crime.” Burton argued the instruction’s reference to the “charged crime” undermines any claim that the defendant may have felt a consciousness of guilt of a lesser offense than first degree murder and therefore created a presumption of guilt of the charged crimes. Burton noted that the analogous CALJIC instruction (No. 2.03) provided only that deliberately false statements could be used to show a consciousness of guilt without restricting that awareness of guilt to the “charged” crime. However, in considering all of the instructions given, which included the lesser included offenses, the jury would have understood that any consciousness of guilt evidenced by Burton’s false statements to police would operate as to any degree of homicide, not merely first degree murder. Although the court rejected the claim that CALCRIM No. 362 is infirm, it did note “[t]hat does not mean that the instruction could not be improved.”

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C084180.PDF