After defendant has made a Penal Code section 1118.1 motion for acquittal, a trial court has the discretion to allow the prosecution to reopen its case to present evidence inadvertently omitted that goes to an element of the offense. Appellant, a teacher at a state prison, was charged with Penal Code section 4573.6 (possession of marijuana in state prison) after correctional officers retrieved her purse while she was teaching a class of inmates and searched it and found .43 grams of marijuana. At trial, at the close of the prosecution’s case-in-chief, appellant made a motion for acquittal under section 1118.1, arguing that the prosecution had failed to present evidence that the marijuana was a useable amount. The prosecuting attorney responded that if he had failed to present the evidence, it was an inadvertent mistake as he fully intended to do so. The trial court denied the motion and permitted the prosecution to call his witness and appellant was ultimately convicted. The appellate court, while noting that it had found no published case where the trial court permitted the prosecution to reopen its case to present evidence inadvertently omitted that goes to an element of the offense, found no abuse of discretion. Under Penal Code sections 1093 and 1094, the trial court has broad discretion to order a case reopened and allow introduction of additional evidence, including after a section 1118 motion has been made, so long as the court is convinced that the failure to present evidence was inadvertent and not to gain tactical advantage. Here, it was clear that the prosecution was intending to present evidence as to a usable amount in his case-in-chief, the evidence did not involve a new theory of the case, and it was not a surprise to the defense.
The current version of CALCRIM No. 220 [reasonable doubt instruction] adequately explains the applicable law. Appellant argued that the instruction was inadequate because it failed to instruct the jury that it must find every element of the charged offense true beyond a reasonable doubt. The court rejected appellant’s argument, finding that the instructions, taken as a whole, adequately informed the jury that the prosecution was required to prove each element of the charged crime beyond a reasonable doubt.