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Name: People v. Diaz
Case #: H036414
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/01/2012
Subsequent History: Review granted 11/20/12: S205145

In a criminal threats case, the trial court has a sua sponte duty to instruct jury that defendant’s extrajudicial statements should be viewed with caution; failure to do so was harmless error. The female appellant and others went to the victim’s house and demanded he come outside. When he did so, he was attacked by the group and stabbed by one of appellant’s male cohorts. After the stabbing appellant made threatening statements to the victim and others. Appellant was convicted of premeditated attempted murder and three counts of criminal threats. On appeal, she challenged the trial court’s failure to instruct the jury that her extrajudicial, oral statements should be viewed with caution. Affirmed. The bench notes to CALCRIM No. 358 observe that People v. Zichko (2004) 118 Cal.App.4th 1055, held there is no sua sponte duty to give the instruction in a criminal threats case. The court here disagreed with the holding in Zichko because it “created a false dichotomy between a statement that constitutes a crime and a statement that is evidence of a crime.” The California Supreme Court in People v. Carpenter (1997) 15 Cal.4th 312, “indicated that the cautionary instruction applied to all oral, out of court statements made by a defendant,” not just statements which admit a fact. Although it was error to omit the instruction, it was harmless in light of the evidence.