Trial court no longer has sua sponte duty to instruct jury to consider a defendant’s out-of-court statements with caution. Diaz was convicted of premeditated attempted murder and three counts of making criminal threats. The trial court gave the standard instructions including those addressing credibility considerations when assessing witness testimony. The court did not give, nor did Diaz request, an instruction to view Diaz’s extrajudicial statements with caution. On appeal she claimed the trial court erred in failing to give CALCRIM No. 358to “consider with caution any unrecorded statement made by defendant” which tends to incriminate her. Held: Affirmed. A trial court is required to instruct “on the general principles of law relevant to the issues raised by the evidence.” Under former Code of Civil Procedure section 2061, this included the obligation to instruct the jury to consider a defendant’s extrajudicial statements with caution. After section 2061 was repealed, numerous decisions continued to recognize this requirement. However, this cautionary instruction is no longer “necessary for the jury’s understanding of the case” because the trial court is now required to instruct on general principles that apply to the consideration of witness testimony. Although CALCRIM No. 358 may be helpful in some cases, it is not one of the “general principles of law upon which the trial court is required to instruct in the absence of a request.”
Elimination of the duty to sua sponte instruct the jury to view a defendant’s extrajudicial statements with caution does not violate equal protection of the law. Penal Code section 859.5, subdivision (a) requires that custodial interrogations of juvenile murder suspects be recorded. If they are not, the trial court must instruct the jury to view statements made during the interrogation with caution. Diaz claimed she is similarly situated to such defendants and that elimination of the trial court’s duty to give the cautionary instruction regarding defendants’ extrajudicial statements denies her equal protection of the law. However, Diaz is not similarly situated to juvenile murder suspects to whom section 859.5 applies. No law requires recording of an adult defendant’s admissions and the special problems created by custodial interrogation of juvenile suspects in murder cases that the Legislature identified when it adopted section 859.5 do not apply in defendant’s case.
The cautionary instruction in CALCRIM No. 358 applies in criminal threats cases. The court noted a split in the Courts of Appeal as to whether the cautionary instruction regarding a defendant’s extrajudicial statements should even be used in a criminal threats case (Pen. Code, § 422), where the statement constitutes the criminal act itself. The considerations that give rise to the need for caution in considering a defendant’s extrajudicial admissions also apply when the statements constitute the criminal act itself. A statement by a party that is offered against that party is admissible in evidence regardless of its hearsay nature. This type of evidence is “considered dangerous” because the statement may be misapprehended by the person who hears it, may not be well remembered, and may be incorrectly repeated. The court here thus concluded that “the cautionary instruction applies to any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant’s guiltit does not matter whether the statement was made before, during, or after the crime, whether it can be described as a confession or admission, or whether it is a verbal act that constitutes part of the crime or the criminal act itself.” Additionally, the cautionary instruction does not conflict with the reasonable doubt standard. The court disapproved People v. Zichko (2004) 118 Cal.App.4th 1055 to the extent it reached a contrary conclusion.