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Name: People v. Fonseca
Case #: F039525
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/21/2003
Subsequent History: Order mod. opinion No Change in Judgment 1/24/03. Rev. denied 4/16/03.

It is not error to give the modified version of CALJIC No. 2.11.5 where an unjoined coperpetrator testifies at trial. Appellant was convicted of possession of an illegal weapon (Pen. Code, sec. 4502) and aggravated assault (Pen. Code, sec. 4501), both while an inmate in a state prison. These charges arose from a fight between three inmates, appellant and another unjoined coperpetrator named Nava, attacked a third person, Villa. Two shanks (homemade knives) were found after guards broke up the fight. Villa suffered numerous cuts and puncture wounds. Nava testified for the defense that he was the sole attacker and that he held both shanks, one in each hand. The court instructed the jury using the 1996 version of CALJIC No. 2.11.5, that they not speculate on the reasons why a coperpetrator may not have been prosecuted in the case. The Use Note for the instruction suggests that it not be given where in unjoined perpetrator of the same crime testifies for either side. The 1996 version of this instruction was drafted after the previous version was criticized by the Supreme Court that it “might better deter speculation if it told the jury explicitly that its sole duty is to decide whether this defendant is guilty. . . .” (People v. Farmer (1989) 47 Cal.3d 888, 918-919.) No case since has examined whether it is error to give the 1996 amended instruction where an unjoined coperpetrator testifies at trial. The Fifth District decides here that it was not.