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Name: People v. Warner
Case #: F051027
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/03/2008

CALCRIM No. 226 does not impermissibly lower the prosecution’s burden of proof. In his appeal from his murder conviction, Warner contended that the last paragraph of CALCRIM No. 226 (witness wilfully false) impermissibly lightens the prosecution’s burden of proof. He argued that the use of the word “should” rather than may, and “ignore” invited the jury to reject all of his testimony even more so than former CALJIC No. 2.21.2. The appellate court rejected the challenge, finding that the differences between the two instructions are not even material, let alone prejudicial.
The trial court properly stayed the term for the lesser firearm enhancement. The trial court imposed a 25-year to life sentence for personal and intentional discharge of a firearm proximately causing g.b.i. or death pursuant to section 12022.53, and imposed and stayed a consecutive four-year term for personal use of a firearm under section 12022.5. Warner argued that the court should have stricken the lesser firearm enhancement instead. The appellate court rejected the argument. In People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court held the lesser enhancements should be stayed, not stricken.