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Name: People v. McGowan
Case #: C054075
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/10/2008

CALCRIM No. 362 is not an improper pinpoint instruction. The court has no sua sponte duty to instruct that absence of flight shows consciousness of innocence. Prior to his jury trial, appellant gave differing statements to investigating officers regarding his contacts with the victim. The jury was instructed pursuant to CALCRIM No. 362 that if it found that defendant made a willfully false or deliberately misleading statement concerning the crime, it could consider this statement as a circumstance tending to prove a consciousness of guilt but that it alone was not sufficient to prove guilt. The appellate court held that this was not an improper pinpoint instruction and noted that, despite minor differences, the language of the CALCRIM instruction mirrored that of CALJIC No. 2.03, which has been determined to not be an improper pinpont instruction. (People v. Arias (1996) 13 Cal.4th 92; People v. Kelly (1992) 1 Cal.4th 495.) The court also held that there is no sua sponte duty to instruct on absence of flight. Unlike flight, for which the court has a sua sponte duty to instruct when the prosecution relies on it to show consciousness of guilt, absence of flight presents such marginal relevance it is usually not even admissible