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Name: People v. Pescador
Case #: C042759
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/08/2004

In appellant’s murder trial, the jury was instructed with CALJIC 8.71 and 8.72, which told them that if they were convinced beyond a reasonable doubt that murder has been committed, but have a reasonable doubt as to the degree, they must return a verdict of second degree murder; and that if they have a reasonable doubt as to whether the offense is murder or manslaughter, they must return a verdict of manslaughter. On appeal, appellant argued that those instructions violated his due process rights by allowing a jury to make a determination of guilt on an element of the crime where one or more jurors may have reasonable doubt. The appellate court rejected the argument, noting that the jury was also instructed with CALJIC 17.11 and 17.40. Taken as a whole, the jury was not instructed that it had to make a unanimous finding that they had reasonable doubt as to whether the crime was murder or manslaughter in order for the defendant to receive the benefit of the doubt. Further, the Supreme Court has consistently upheld the validity of those instructions. Further, there was no error in instructing the jury with CALJIC 2.50.02. The instruction, in the present case, was neither illogical nor a violation of appellant’s due process rights.