Appellant, William Satele, Reply Brief - California Courts - State of ...

turn relied on the language from Wickersham, as set forth above, explaining that
invited error is designed to prevent an accused from gaining a reversal because of
an error made at his behest, where the defense counsel intentionally caused the
trial court to err.
As explained in Appellant's Opening Brief and Respondent's Brief (AOB
64, RB 150, (13RT 3071, 11. 11-28), after the prosecutor argued that CALJIC No.
8.31 was not applicable, the court asked if the defense agreed. Counsel for
appellant answered that he had his own requests, and the court stated it would
address them later. Counsel for Nunez said he thought they had instructions for
second degree murder included. The court then stated that second degree murder
instruction was included in the other instructions. (13RT 3071.)
As a result, in this case, although respondent labels this exchange as the
defense "tactically" agreeing that CALJIC No. 8.31 was not a proper instruction,
there is no evidence that appellant asked the court not to give an instruction for
second degree murder based on implied malice. Rather, it appears to be an issue
that was overlooked when instructions were discussed. Because there is no reason
to conclude that defense counsel requested the instruction not be given, or that the
omission of the instruction was a tactical decision on the part of appellant's
counsel, the doctrine ofinvited error is not applicable.
D. Substantial Evidence Supports The Need For CALJIC No. 8.31.
Respondent agrees with the proposition that a trial court has a sua sponte
duty to instruct on general principles of law that are closely and openly connected
with the evidence when there is "substantial" evidence supporting the instruction.
(RB at p.148.) However, respondent contends that there was no error in not
instructing the jury with CALJIC No. 8.31 because no substantial evidence
supported that instruction. (RB 151.)
Respondent's contention is flawed for several reasons.
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