1

Filed 4/6/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S205145

v. )

) Ct.App. 6 H036414

DORA DIAZ, )

) Santa Clara County

Defendant and Appellant. ) Super. Ct. No. CC954415

____________________________________)

We granted review to resolve a conflict in the Courts of Appeal regarding

whether a trial court has the duty to instruct a jury to consider a criminal 

defendant‟s out-of-court statements with caution when the statements at issue form

the basis of a prosecution for making criminal threats. We also asked the parties 

to brief whether we should continue to require courts to instruct that a defendant‟s 

out-of-court statements must be viewed with caution even in the absence of a 

request. 

We hold that the cautionary instruction is applicable when the statements at 

issue are criminal threats. However, the trial court is no longer required to give 

the instruction sua sponte. In the present case, the failure to give the instruction, 

even if error, was harmless. 

I. FACTS AND PROCEDURE

Defendant Dora Diaz was charged and convicted of one count of willful, 

deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 189, 664, 
2

subd. (a))1 and three counts of threatening to commit a crime resulting in death or 

great bodily injury (§ 422). The jury found defendant guilty on all four counts and 

the trial court sentenced her to a prison term of life, with the possibility of parole 

after seven years, for the attempted murder and a consecutive three-year fourmonth prison term for the three criminal threats.

The criminal threats charges stemmed from statements defendant made 

during and after the attempted murder of Eduardo Morales. On September 5, 

2009, Eduardo lived in a two-room apartment in San Jose with his mother, Marta 

Rosales, his sister-in-law, Indira Pineda, and three other family members.

Defendant had recently ended a relationship with Eduardo. Between 1:00 a.m.

and 1:30 a.m., Eduardo was asleep in the apartment‟s living room when he awoke 

to knocking on the window and door. He peeked out the window and saw 

defendant and two women he did not recognize yelling at him to come out. While

putting on his shoes to go outside, he heard one of the apartment‟s windows break. 

He opened the door and asked the women why they were doing this to him. The 

three women grabbed Eduardo by his hair, which was long, and dragged him into 

the driveway. Marta called 911 to report that her son was being assaulted. 

The three women began hitting and kicking Eduardo in his face and chest. 

Eduardo was knocked to the ground and covered himself. During the attack, the 

women were calling him names and one yelled, “Puro catorce,” which an expert 

later testified constituted a declaration that the Norteño street gang was 

responsible for the attack. 

 

1 All further statutory references are to the Penal Code, unless otherwise 

noted.
3

Defendant then stepped back, snapped her fingers twice, and whistled. 

Three men, including one who looked like defendant‟s 16-year-old son, emerged 

and joined in the beating. One of the men had a knife with a four- or five-inch 

blade; he began stabbing Eduardo. 

Marta came out of the apartment and pleaded with the assailants to cease 

the attack on her son. Eduardo called out to tell her that he had been stabbed. 

Possibly alerted by the sound of sirens, some of the assailants retreated to a darkcolored Lincoln Town Car. Defendant remained and lifted Eduardo‟s shirt so she 

could view his wounds. When looking at the wounds, defendant laughed.

Defendant then argued with Marta and Eduardo‟s sister-in-law, Indira, who also 

had come out of the house. Defendant and Indira grabbed at each other and 

exchanged words. Eventually, defendant ran off. 

The three counts of criminal threats correspond with statements allegedly 

made by defendant to Eduardo, Marta, and Indira during the attack. Each testified 

concerning the statements. Eduardo testified that when defendant lifted his shirt to 

view his wounds, she told him “that if [he] did not die this time, that [he] surely 

would the next time and that she was going to finish off [his] whole family.” He 

further testified that he saw defendant arguing with Indira and calling her names, 

but he could not recall whether defendant had said anything else to Indira.

Marta testified that defendant told Eduardo, “If you don‟t die from this one, 

you‟ll die next time around.” She further testified that defendant threatened her,

saying “you‟re going to pay for this” and that defendant “would kill every member 

of [Marta‟s] family one by one.” She recalled defendant also telling Indira, 

“you‟re going to pay for this.” Marta‟s husband, Alvaro Hernandez, testified that 

defendant told his wife that she was going to kill everyone. 

Indira testified that while the women were dragging Eduardo out by his 

hair, defendant “was telling him, „I‟m going to kill you.” Later, she said, 
4

defendant told Eduardo that “if he didn‟t die from this one, he would die from the 

next one.” Indira further testified, “she did say that she could possibly kill all of 

us . . . Marta, Eduardo, and whoever else lived there.” Indira testified that 

defendant told her specifically, “You‟re going to pay for this . . . I‟m going to kill 

you.” 

Prior to jury deliberations, the trial court provided standard instructions on 

the elements of the crimes, the presumption of innocence, the burden of proof, the 

treatment of circumstantial evidence, and credibility considerations when 

assessing witness testimony. Defendant did not request, nor did the court provide 

on its own motion, CALCRIM No. 358, which instructs the jury to “[c]onsider 

with caution” any unrecorded statement made by the defendant tending to show 

his or her guilt.2

On appeal, defendant argued that omission of this instruction was reversible 

error. The Court of Appeal affirmed defendant‟s conviction, holding that any

error in omitting the instruction was harmless in light of the other instructions the 

jury received and the evidence in the case. The Court of Appeal expressly 

disagreed with People v. Zichko (2004) 118 Cal.App.4th 1055 (Zichko). In 

Zichko, a defendant who had been convicted of making criminal threats argued 

that the trial court had erred in failing to give CALJIC No. 2.71, which, like

 

2 CALCRIM No. 358 provides: “You have heard evidence that the 

defendant made [an] oral or written statement[s] (before the trial/while the court 

was not in session). You must decide whether the defendant made any (such/of 

these) statement[s], in whole or in part. If you decide that the defendant made 

such [a] statement[s], consider the statement[s], along with all the other evidence, 

in reaching your verdict. It is up to you to decide how much importance to give to 

the statement[s]. [¶] [Consider with caution any statement made by (the/a) 

defendant tending to show (his/her) guilt unless the statement was written or 

otherwise recorded.]” 
5

CALCRIM No. 358, advises jurors that “[e]vidence of an oral admission of [a] 

[the] defendant not made in court should be viewed with caution.” Zichko held 

that the cautionary instruction is not to be given in a criminal threats case, in 

which the statement constitutes the criminal act itself.3 (Zichko, supra, at 

p. 1058.) It reasoned that the cautionary instruction should be given only when the 

statement reflects an “admission.” Zichko concluded that in a criminal threats 

case, where the statements constitute the criminal act itself, they do not constitute

admissions because the truth of the threats is immaterial. (Id., at p. 1060.) It also 

concluded that the cautionary instruction is “inconsistent with the reasonable 

doubt standard of proof.” (Ibid.) Zichko reasoned that giving the cautionary 

instruction in a criminal threats case may lead a jury to believe it could find a 

defendant guilty “even if it did not conclude beyond a reasonable doubt that the 

statements were made, as long as the jury exercised „caution‟ in making its 

determination.” (Ibid.) The Court of Appeal in the present case concluded that 

Zichko “seems to have created a false dichotomy between a statement that 

constitutes a crime and a statement that is evidence of a crime.” 

II. ANALYSIS 

A. Applicability of the Cautionary Instruction to Criminal Threats

As we explain below, case law recognizes that the purpose of the 

instruction — to aid the jury in evaluating whether the defendant actually made 

 

3 CALJIC No. 2.71 provides: “An admission is a statement made by [a] [the] 

defendant which does not by itself acknowledge [his][her] guilt of the crime[s] for 

which the defendant is on trial, but which statement tends to prove [his][her] guilt 

when considered with the rest of the evidence. [¶] You are the exclusive judges 

as to whether the defendant made an admission, and if so, whether that statement 

is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the] 

defendant not made in court should be viewed with caution.]”
6

the statement — is served regardless of whether the statement constitutes all or 

part of the criminal act and whether it is admitted for its truth. Contrary to the 

reasoning of Zichko, we see no conflict between the cautionary instruction and the 

requirement of proof beyond a reasonable doubt. 

In 1872, the Legislature codified as part of the Code of Civil Procedure 

certain instructions regarding the effect of evidence, to be given to the jury “on all 

proper occasions.” (Code Civ. Proc., former § 2061.) These included instructions 

“that the testimony of an accomplice ought to be viewed with distrust, and the 

evidence of the oral admissions of a party with caution.” (Code Civ. Proc., former 

§ 2061, subd. 4; see People v. Ford (1964) 60 Cal.2d 772, 799.) Code of Civil 

Procedure former section 2061 was not limited to criminal cases, and the statutory 

requirement has long been reflected in the pattern jury instructions applicable to 

both civil and criminal cases.4 

The Legislature repealed Code of Civil Procedure, former section 2061 in 

1965 when it adopted the Evidence Code. (Stats. 1965, ch. 299, § 127, p. 1366, 

operative Jan. 1, 1967.) The Law Revision Commission explained that because

“the section is but a partial codification of the common law, the repeal should have 

 

4 (See CALJIC No. 29-D (1st ed. 1946) [“The law of this state admonishes 

you to view with caution the testimony of any witness which purports to relate an 

oral admission of the defendant [or an oral confession by him]”]; Cal. Jury 

Instructions, Civil, No. 8 (1938) [“evidence of the oral admission of a party, other 

than by his own testimony in this trial, ought to be viewed by you with caution”]; 

see also CACI No. 212 (2014 ed.) [“A party may offer into evidence any oral or 

written statement made by an opposing party outside the courtroom. [¶] . . . [¶] 

You should view testimony about an oral statement made by a party outside the 

courtroom with caution”]; BAJI No. 2.25 (2014 ed.) [“A statement made by a 

party before trial that has a tendency to prove or disprove any material fact in this 

action and which is against that party‟s interest is an admission. Evidence of an 

oral admission not made under oath should be viewed with caution”].)
7

no effect on the giving of the instructions contained in the section or on the giving 

of any other cautionary instructions that are permitted or required to be given by 

decisional law.” (Recommendation Proposing an Evidence Code (Jan. 1965) 

7 Cal. Law Revision Com. Rep. (1965) com. on repeal foll. Code Civ. Proc., 

§ 2061, p. 358.) Subsequently we held, citing the Law Revision Commission‟s

report, that the repeal had no effect on the court‟s obligation to give the

instructions contained in the former statute. (People v. Beagle (1972) 6 Cal.3d 

441, 455, fn. 4 (Beagle).) 

In order to evaluate the circumstances in which the cautionary instruction is 

applicable, we begin with the considerations that give rise to the need for caution. 

The extrajudicial admission of a party — that is, any statement by a party to an 

action that is offered against that party — is admissible in evidence regardless of 

its hearsay character. (Evid. Code, § 1220; see Code Civ. Proc., former § 1870, 

subd. 2, enacted 1872 and repealed by Stats. 1965, ch. 299, § 58, p. 1360, 

operative Jan. 1, 1967.) “This kind of testimony is considered dangerous, first, 

because it may be misapprehended by the person who hears it; secondly, it may 

not be well remembered; thirdly, it may not be correctly repeated.” (People v. 

Gardner (1961) 195 Cal.App.2d 829, 832.) Even witnesses with the best 

intentions often cannot report the “ „exact language‟ ” used by a defendant, and 

therefore may convey, through errors and omissions, an inaccurate impression of a

defendant‟s statements. (People v. Bemis (1949) 33 Cal.2d 395, 399.) “ „No other 

class of testimony affords such temptations or opportunities for unscrupulous 

witnesses to torture the facts or commit open perjury, as it is often impossible to 

contradict their testimony at all, or at least by any other witness than the party 

himself.‟ (2 Jones, Commentaries on the Law of Evidence, 620.)” (Ibid.) Even if 

the party testifies, it may be difficult to convincingly dispute evidence of an 

extrajudicial admission because the party has an obvious interest in the outcome of 
8

a case. “It was undoubtedly such considerations that led the Legislature to make 

the admitting of extrajudicial admissions into evidence conditional on the giving 

of a cautionary instruction.” (Ibid.) The cautionary instruction “is designed to aid 

the jury in determining whether an admission or confession was in fact made.” 

(Id. at p. 400.)

We recognized in People v. Carpenter (1997) 15 Cal.4th 312 (Carpenter)

that “[t]he rationale behind the cautionary instruction suggests it applies broadly.” 

(Id. at pp. 392-393.) In Carpenter, the defendant was charged with murder and 

attempted rape. An eyewitness testified that, prior to the killing, the defendant 

told the victim, “ „ “I want to rape you.” ‟ ” (Id. at p. 392.) We noted that the 

statement of intent “was part of the crime itself,” and we reiterated our observation 

in Beagle that “ „[f]or purposes of requiring . . . cautionary instructions, we have 

not distinguished between actual admissions [citation] and pre-offense statements 

of intent [citation]. [Citations.]‟ ” (Carpenter, at p. 392, quoting Beagle, supra, 6 

Cal.3d at p. 455, fn. 5 [cautionary instruction required with respect to arsonist‟s 

preoffense statement].) We also reiterated the reason for not excluding preoffense 

statements from the ambit of the instruction: “[A]lthough the risk of conviction 

because of a false preoffense statement alone is less than the risk of conviction 

upon a false confession or admission, „we find the risk of an unjust result 

sufficient to justify our broader rule.‟ ” (Carpenter, at p. 392, quoting Beagle, at 

p. 455, fn. 5.) Finally, we observed that “ „[t]he purpose of the cautionary 

instruction is to assist the jury in determining if the statement was in fact made.‟ 

[Citation.] This purpose would apply to any oral statement of the defendant, 

whether made before, during, or after the crime.” (Carpenter, at p. 393.) 

Consistent with Carpenter, CALCRIM No. 358 does not use the term 

“admissions” and requires caution regarding “any statement made by (the/a) 
9

defendant tending to show (his/her) guilt unless the statement was written or 

otherwise recorded.”5

The Attorney General argues that Carpenter‟s assertion that the instruction 

applies to “any oral statement of the defendant” constitutes dicta set out in the 

context of statements that tend to prove the crime — admissions and preoffense 

statements of intent — and should not be extended to statements that constitute the 

criminal act itself. Although Carpenter did not actually address a statement that 

constituted the charged criminal act, its reasoning applies fully to such statements. 

The risk that a witness will report the defendant‟s statement inaccurately or falsely 

is just as great in a case involving a threat as in a case involving a confession or a 

preoffense statement of intent. And the risk that inaccurate or false testimony will 

lead to an unjust result is just as great when the statement constitutes the charged 

criminal act as it is when the statement merely provides evidence of the criminal 

act. 

The court in Zichko misinterpreted Carpenter as holding that “the 

instruction applies to any oral admission.” (Zichko, supra, 118 Cal.App.4th at 

p. 1059, italics added.) Zichko then reasoned that the instruction did not apply to a 

verbal threat because a threat did not fall within its definition of an “admission.”

(Ibid.) Both the language and rationale of Carpenter make clear, however, that the 

instruction applies to any oral statement by the defendant, used to show guilt, 

regardless of whether it fits any particular definition of “admission.” Zichko also 

went astray in focusing on the circumstance that the statements at issue constituted 

 

5 In contrast, the CALJIC instruction discussed in Zichko, supra, 118 

Cal.App.4th 1055, requires that “Evidence of an oral admission of [a] [the] 

defendant not made in court should be viewed with caution.” (CALJIC No. 2.71.) 
10

a criminal act whose truth was not material. “[W]hether defendant‟s statements 

were „verbal acts‟ and therefore not hearsay (Evid. Code, §§ 125, 1200) or 

admissions but admissible as an exception to the hearsay rule (Evid. Code, 

§§ 1204, 1220) does not determine whether they should be viewed with caution.” 

(People v. Ramirez (1974) 40 Cal.App.3d 347, 352; see People v. McKinnon 

(2011) 52 Cal.4th 610, 679 [cautionary instruction applicable to defendant‟s oral 

threats, used to prove his guilt of murder].) The cautionary instruction is 

concerned with the reliability and credibility of the witness who testifies about the 

defendant‟s statements. Such concerns are present regardless of whether the 

statement is offered for its truth or as a verbal act whose truth is not relevant. For 

this reason, the cautionary instruction applies to statements that are not admitted 

for their truth, such as a statement admitted to show the defendant‟s state of mind 

or a false exculpatory statement admitted as evidence of consciousness of guilt.6 

 

6 In limiting application of the cautionary instruction to “admissions,” Zichko

found support in the circumstance that the CALJIC version of the cautionary 

instruction at issue in that case directs the jury to determine “whether [the] 

statement is true in whole or in part.” (CALJIC No. 2.71 and quoted by Zichko, 

supra, 118 Cal.App.4th at p. 1060.) Zichko noted that there would be no reason to 

instruct a jury to determine whether a threat was true because a threat may be a 

crime “even if there is no intent of actually carrying it out.” (§ 422 and quoted by

Zichko, at p. 1060.) The pattern jury instructions, however, “are not themselves 

the law, and are not authority to establish legal propositions or precedent.” 

(People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.) In contrast to the CALCRIM 

instructions (which include one cautionary instruction that is applicable to all oral 

statements of the defendant), CALJIC includes separate instructions tailored to 

different types of statements: a defendant‟s oral confession (CALJIC No. 2.70), 

an admission not amounting to a confession (CALJIC No. 2.71), and a preoffense 

statement of intent, plan, motive, or design (CALJIC No. 2.71.7). The 

circumstances that the CALJIC instruction drafted to apply to admissions includes 

language that may not be appropriate when the defendant‟s statements are offered

as proof of a verbal act, and that the CALJIC drafters have not created an 

instruction specifically applicable to statements offered as proof of a verbal act, do 

(footnote continued on next page)
11

(See People v. Brackett (1991) 229 Cal.App.3d 13, 17-20; People v. Mendoza

(1987) 192 Cal.App.3d 667, 675-676; but see People v. La Salle (1980) 103 

Cal.App.3d 139, 151 [criticizing the definition of “admission” in CALJIC 

No. 2.71 because it could apply to nonhearsay], disapproved on other grounds in 

People v. Kimble (1988) 44 Cal.3d 480, 496 & fn. 12.) Thus, the cautionary 

instruction applies to any extrajudicial oral statement by the defendant that is used 

by the prosecution to prove the defendant‟s guilt — it does not matter whether the 

statement was made before, during, or after the crime, whether it can be described 

as a confession or admission, or whether it is a verbal act that constitutes part of 

the crime or the criminal act itself. We disapprove People v. Zichko, supra, 118 

Cal.App.4th 1055 to the extent it reaches a contrary conclusion.

Echoing Zichko, supra, 118 Cal.App.4th at page 1060, the Attorney 

General argues that, in the context of a criminal threats case, the cautionary 

instruction conflicts with the requirement that the elements of the offense, 

including the threat itself, be proved beyond a reasonable doubt. The Attorney 

General contends that the cautionary instruction could mislead jurors to believe 

they could find a defendant guilty of making a criminal threat without proof 

beyond a reasonable doubt that the threat was made, as long as they exercise 

caution in making that determination. This argument is not persuasive. The 

cautionary instruction does not conflict with the reasonable doubt instruction 

because the two instructions serve distinct purposes and aid the jury in different 

ways. The reasonable doubt instruction informs the jury that it must find the facts 

 

(footnote continued from previous page)

not support the conclusion that a cautionary instruction is inapplicable to criminal 

threats. 
12

required for conviction to be proved with the specified level of certainty before it 

may convict the defendant. (CALCRIM No. 220.) The cautionary instruction, on 

the other hand, advises jurors that in deciding whether to believe a witness‟s 

testimony about the defendant‟s statements, they must exercise particular caution. 

The two instructions, together, inform the jury that it must determine whether each

of the elements of the crime has been proved beyond a reasonable doubt, and that 

in making that determination it must exercise special caution in considering one

particular type of evidence.

Furthermore, nothing in the wording of the instructions would suggest to a 

jury that the cautionary instruction was meant to apply in lieu of — rather than in 

addition to — the reasonable doubt instruction. The CALCRIM instructions given 

in the present case permit a conviction for criminal threats only if the People prove 

all of the elements of the offense. (See CALCRIM No. 1300.) The reasonable 

doubt instruction informed the jury, “Whenever I tell you the People must prove 

something, I mean they must prove it beyond a reasonable doubt [unless I 

specifically tell you otherwise].” (CALCRIM No. 220.) The language of the 

cautionary instruction does not reference the People‟s burden of proof or the 

elements of the offense, or in any other way suggest to jurors that the instruction

was meant to create an exception to the rule that all elements of the crime must be 

proved beyond a reasonable doubt.7 

 

7 Also unavailing is the Attorney General‟s contention that the language in 

CALCRIM No. 358 directing a jury to “decide how much importance to give to 

the statement[s]” indicates that the cautionary instruction was never intended to be 

given when the statement constitutes the criminal act itself. Because the 

instruction is not itself authority, whether or not it was so intended does not affect 

our analysis. (See People v. Morales, supra, 25 Cal.4th at p. 48, fn. 7.) In any 

event, it is not clear that the language directing a jury to consider the importance 

of the statement is inapplicable in a criminal threats case. In such a case, the jury 

(footnote continued on next page)
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B. Trial court’s duty to instruct on its own motion

We asked the parties to brief whether the cautionary instruction should 

continue to be required in the absence of a request by the defendant. As we 

explain below, the trial court‟s sua sponte obligation to give the cautionary 

instruction was originally based on Code of Civil Procedure former section 2061. 

Following that statute‟s repeal, we continued to recognize the obligation without 

analyzing whether the requirement is warranted. We now conclude that in light of 

a change in the law that requires the general instructions on witness credibility to 

be given sua sponte in every case, the cautionary instruction is not one of the 

general principles of law upon which a court is required to instruct the jury in the 

absence of a request. The cautionary instruction does not reflect a legal principle 

with which jurors would be unfamiliar absent the instruction, and the defendant 

may not always want the instruction to be given. Nevertheless, the instruction 

may be useful to the defense in highlighting for the jury the need for care and

caution in evaluating evidence of the defendant‟s statements. Finally, we explain 

that the fact that the Legislature has imposed a sua sponte duty to give the 

instruction in certain circumstances in juvenile cases does not require that all

criminal defendants receive the same treatment under equal protection principles. 

“It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by 

the evidence. [Citations.] The general principles of law governing the case are 

those principles closely and openly connected with the facts before the court, and 

 

(footnote continued from previous page)

must determine not only whether the statement was made but also whether it was 

intended to “be taken as a threat” and whether it caused the victim to “fear for his 

or her . . . safety.” (§ 422.)
14

which are necessary for the jury‟s understanding of the case.” (People v. 

St. Martin (1970) 1 Cal.3d 524, 531; see People v. Delgado (2013) 56 Cal.4th 480, 

488.) We long ago held that, under Code of Civil Procedure former section 2061, 

a trial court in a criminal case was obligated to advise the jury on the court‟s own 

motion to consider a defendant‟s extrajudicial statements with caution. (People v. 

Bemis, supra, 33 Cal.2d at p. 399.) After the repeal of Code of Civil Procedure 

former section 2061 we continued to so hold (see Carpenter, supra, 15 Cal.4th at 

p. 392), but none of our cases has until now carefully examined whether the 

cautionary instruction is one of those “general principles of law” so “necessary for 

the jury‟s understanding of the case” that the instruction must be given by the trial 

court even when the defendant does not request it. 

Our early cases identified the language of Code of Civil Procedure former 

section 2061 — requiring that the cautionary instruction be given “by the Court on 

all proper occasions” — as the basis for imposing a sua sponte duty on the trial 

court to give the cautionary instruction. (See, e.g., People v. Koenig (1946) 29 

Cal.2d 87, 94 [“In view of the code section . . . such a cautionary instruction 

should have been given” (italics added)]; People v. Cornett (1948) 33 Cal.2d 33, 

40 [“It is clear that in view of the foregoing code section the trial court should have 

given such a cautionary instruction” (italics added)]; People v. Bemis, supra, 33 

Cal.2d at p. 399 [noting that “the Legislature [made] the admitting of extrajudicial 

admissions into evidence conditional on the giving of a cautionary instruction”]; 

People v. Ford, supra, 60 Cal.2d at p. 799 [quoting Code Civ. Proc., former 

§ 2061‟s language that the jurors “ „are . . . to be instructed by the court on all 

proper occasions‟ ” to view “ „oral admissions of a party . . . with caution‟ ”].)

After the repeal of Code of Civil Procedure former section 2061 in 1967, 

our seminal case addressing the trial court‟s sua sponte instructional duties 

respecting a criminal defendant‟s out-of-court admissions was Beagle, supra, 6 
15

Cal.3d 441. There we affirmed that the trial court had a sua sponte duty to give 

this instruction. (Id. at p. 455.) As primary authority, we cited People v. Ford, 

supra, 60 Cal.2d at page 799, a case based on the statutory provision. (Beagle, at 

p. 455.) We observed in a footnote that “Although Code of Civil Procedure 

section 2061, requiring the cautionary instruction, was repealed effective January 

1, 1967, the repeal does not affect the decisional law,” citing the Law Revision 

Commission comment to that effect discussed above. (Id. at p. 455, fn. 4.) We 

also cited two Court of Appeal decisions: People v. Blankenship (1970) 7 

Cal.App.3d 305 and People v. Reed (1969) 270 Cal.App.2d 37. (Beagle, supra, at 

p. 455, fn. 4.) Those Court of Appeal decisions likewise observed that cases like 

Ford and Bemis remained valid despite the repeal of Code of Civil Procedure 

section 2061, because, the Law Revision Commission‟s comment to the repealed 

section suggested the repeal “should have no effect on the decisional law requiring 

cautionary instructions.” (Blankenship, at p. 310; accord, Reed, at p. 43, fn. 2.) 

We have since affirmed this rule without discussion in a number of cases, all of 

which trace back to our holding in Beagle. (See People v. Slaughter (2002) 27 

Cal.4th 1187, 1200 [citing Beagle]; People v. Williams (1988) 45 Cal.3d 1268, 

1315 [citing Beagle]; People v. Bunyard (1988) 45 Cal.3d 1189, 1224 [citing 

Beagle]; People v. Heishman (1988) 45 Cal.3d 147, 166 [citing Beagle]; see also 

People v. Lang (1989) 49 Cal.3d 991, 1021 [citing Williams, Bunyard, Heishman, 

and Beagle]; Carpenter, supra, 15 Cal.4th at p. 392 [citing Beagle, Lang, and 

Ford].) 

Reconsidering the issue in light of the general principles regarding the 

court‟s duty to provide instructions, we conclude that the instruction need not be 

given sua sponte. The cautionary instruction on admissions is no longer

“necessary for the jury‟s understanding of the case” (People v. St. Martin, supra, 1 

Cal.3d at p. 531, italics added) because courts are now required to instruct the jury, 
16

in all criminal cases, concerning the general principles that apply to their 

consideration of witness testimony. (People v. Rincon-Pineda (1975) 14 Cal.3d 

864, 883-884.)

Although instructions on witness credibility were included in the pattern 

instructions given at the time that Beagle was decided in 1972, no authority

required that they be given sua sponte. (See CALJIC No. 2.20 (3d ed. 1970) 

[Credibility of Witnesses].) The standard CALJIC instruction included a 

statement that the jurors are the exclusive judges of witness credibility, which 

Penal Code section 1127 requires to be given in every criminal case. It also 

included the list of factors affecting witness credibility contained in Evidence 

Code section 780, which provides examples of matters that may be relevant to 

witness credibility. No case or statute, however, required that the jury be 

instructed on these factors. In 1975, we stated that “the substance” of CALJIC 

No. 2.20, including the factors that affect witness credibility, “should henceforth 

always be given.” (People v. Rincon-Pineda, supra, 14 Cal.3d at p. 883 [holding

that courts should no longer instruct juries to consider with caution the testimony 

of the complaining witness in a rape case].) 

Consistent with the instructions required by Rincon-Pineda, current 

instructions advise the jury to consider, among other things, how well a witness 

could “see, hear, or otherwise perceive the things about which the witness 

testified,” how well the witness was “able to remember and describe what 

happened,” and whether the witness‟s testimony was influenced by “bias or 

prejudice, a personal relationship with someone involved in the case, or a personal 

interest in how the case is decided.” (CALCRIM No. 226.) These general 

instructions, like the cautionary instruction, “aid the jury in determining whether 

[the defendant‟s extrajudicial statement] was in fact made.” (People v. Bemis, 

supra, 33 Cal.2d at p. 400.) Consequently, the erroneous omission of the 
17

cautionary instruction has frequently been held to be harmless error in light of 

such general instructions on witness credibility. (See People v. Dickey (2005) 35 

Cal.4th 884, 906; Carpenter, supra, 15 Cal.4th at p. 393; People v. Bunyard, 

supra, 45 Cal.3d at p. 1225.) Because courts must now instruct the jury on these 

general factors in every case, we conclude that the cautionary instruction on 

defendant‟s statements is no longer so necessary to the jury‟s understanding of the 

case as to require the court to give it sua sponte. 

The cautionary instruction regarding a defendant‟s statements stands in 

contrast to instructions that convey a legal principle with which jurors would be 

unfamiliar in the absence of instruction from the court. This distinction is 

illustrated by People v. Najera (2008) 43 Cal.4th 1132, in which we held that the 

trial court had no duty to instruct the jury on its own motion that possession of 

recently stolen property is insufficient by itself to establish guilt of theft-related 

offenses. We compared the instruction at issue with instructions concerning the 

corpus delicti rule and the requirement that the testimony of an accomplice be 

corroborated. Those instructions reflected legal rules that certain types of 

evidence are insufficient, alone, to establish guilt — rules of which the jurors

would not be aware without instruction. (Id. at pp. 1136-1137.) In contrast, the 

rule that possession of stolen property is insufficient in itself to establish guilt of 

theft is “merely a specific application of the general instruction governing 

circumstantial evidence.” (Id. at p. 1138.) We explained that “ „an instruction that 

tells the jury what kinds of rational inferences may be drawn from the evidence 

does not provide any insight jurors are not already expected to possess.‟ 

[Citation.] Such instructions, although helpful in various circumstances, are not 

vital to the jury‟s ability to analyze the evidence and therefore are not instructions 

that must be given to the jury even in the absence of a request.” (Id. at p. 1139.) 

Likewise, the cautionary instruction concerning the defendant‟s extrajudicial 
18

statements may be helpful in some circumstances but is not “vital to the jury‟s 

ability to analyze the evidence.” (Ibid.) 

Furthermore, it is more appropriate to permit defendants to determine 

whether to request the instruction than to require the trial judge to give it in every 

case. In People v. Livaditis (1992) 2 Cal.4th 759, 782-784 (Livaditis), we held 

that the cautionary instruction regarding defendant‟s admissions need not be given 

at the penalty phase of a capital case in the absence of the defendant‟s request. 

We reasoned that at that phase, “whether a particular statement is aggravating or 

mitigating is often open to interpretation.” (Id. at p. 783.) Because advising 

caution might not be in the defendant‟s interest in that context, a trial court need 

not give the cautionary instruction unless it is requested by the defendant. 

In Livaditis, we distinguished a case that rejected the defendant‟s argument 

that the cautionary instruction should not have been given at the guilt phase 

because the defendant‟s statements were both exculpatory and inculpatory —

People v. Vega (1990) 220 Cal.App.3d 310 (Vega). (Livaditis, supra, 2 Cal.4th at 

pp. 783-784.) Vega reasoned that because the CALJIC instruction given in that 

case referred to defendant‟s admission, and defined an admission as a statement 

tending to prove guilt, the jury would understand that only statements tending to 

prove guilt should be viewed with caution. (Vega, at p. 317.) We later reached 

the same conclusion in People v. Slaughter, supra, 27 Cal.4th at page 1200. In 

Livaditis, we reasoned that at “a penalty phase, the distinction between mitigation 

and aggravation is often more blurred than the distinction between a statement that 

incriminates and one that does not. A statement, for example, that the defendant is 

sorry he stabbed the victim to death is both mitigating and aggravating. It admits 

guilt but also expresses remorse.” (Livaditis, at p. 784.) 

Although the line between mitigating and aggravating statements may tend 

to be more blurred than the line between incriminating statements and exculpatory 
19

statements, the difference is only a matter of degree. A statement that is 

exculpatory on its face could be incriminating if proved to be false. (See, e.g., 

People v. Mendoza, supra, 192 Cal.App.3d at pp. 675-676 [defendant‟s 

exculpatory statements to police that were proved to be false, showing

consciousness of guilt, constituted admissions to which the cautionary instruction 

applied].) It is not uncommon that the statements of a defendant contain both 

incriminating and exculpatory elements. In Vega, for example, the defendant was 

charged with robbery, vehicle theft, and kidnapping. In some of his statements to 

police, he admitted taking the vehicle but stated that he did not intend to keep it 

and took it only “temporarily because of an emergency.” (Vega, supra, 220 

Cal.App.3d at p. 317.) The decision in Vega recognized that “it is not uncommon 

that a single statement may tend to prove guilt or innocence, depending upon the 

state of the remaining evidence and the issue for which it is being considered.” 

(Id. at pp. 317-318.) Despite its recognition that a statement may include both 

incriminating and exculpatory elements, Vega declined to require the trial court to 

modify the instruction in such circumstances and relied upon the jury to 

understand the word “admission” and apply it only to incriminating statements. 

(Id. at p. 318.) A defendant, however, might prefer not to rely on the jury‟s ability 

to discriminate between those incriminating admissions it should view with special 

caution and those exculpatory statements that are not subject to the instruction. Or 

a defendant might not contest that the incriminating portions of his or her 

statements were made, and wish to avoid any risk that the jury might apply the 

cautionary instruction to portions of the statements that he or she wanted the jury 

to accept. Therefore, it is appropriate to allow the defendant to make the strategic 

decision whether to request the instruction.

It is true that we have rejected the argument that we should eliminate the 

court‟s sua sponte duty to give an instruction directing the jury to consider an 
20

accomplice‟s statement with distrust — an instruction that also derived from Code 

of Civil Procedure former section 2061, subdivision 4. (People v. Guiuan (1998) 

18 Cal.4th 558.) The majority in Guiuan stated that “[i]t has long been one of the 

instructions on the „general principles of law‟ that trial courts must give on their 

own initiative. . . . The repeal of [section 2061] did not purport to abrogate this 

requirement, and it was continued by our decisional law.” (Id. at p. 569.) 

Nevertheless, we did not feel constrained in Guiuan to maintain the instructional 

duty precisely as it was set forth in the statute. Although we concluded that the 

duty to give the instruction regarding accomplice testimony had not been 

abrogated, we modified the instruction‟s language to require “ „care and caution‟ ” 

rather than “ „with distrust.‟ ” (Ibid.) In addition, in order to remove the burden 

on the trial court to modify the instruction when accomplice testimony is presented 

by, or is favorable to, the defendant, we modified the language of the instruction to 

refer “only to [accomplice] testimony that . . . incriminate[d] the defendant. (Ibid.) 

As Guiuan demonstrates, the language of former section 2061, even as 

perpetuated in our decisions after its repeal, need not inhibit the continuing

development and refinement of the common law rules that it embodied.

The People urge us to conclude not only that the cautionary instruction 

concerning a defendant‟s extrajudicial statements need not be given on the court‟s 

own motion but also that it should never be given, even when a defendant requests 

it. We decline to do so. Although the instruction is not absolutely necessary to the 

jury‟s understanding of the case whenever there is evidence of a defendant‟s 

extrajudicial statements, it can be useful in highlighting for the jury the need to 

carefully consider a type of evidence that is particularly vulnerable to distortion, 

whether intentional or accidental. (See People v. Bemis, supra, 33 Cal.2d at 

pp. 399-400.)
21

Both parties argue that the recent adoption of section 859.5 favors their 

position, but none of their arguments is persuasive. Section 859.5, subdivision (a) 

requires that custodial interrogations of juvenile murder suspects be recorded. If 

such an interrogation is not recorded, the court must instruct the jury to “view with 

caution the statements made in [the] custodial interrogation.” (§ 859.5, 

subd. (e)(3).) The Attorney General argues that the Legislature‟s imposition of a 

sua sponte duty on the court to give the cautionary instruction under these narrow 

circumstances implies a considered decision not to require it more generally for all 

oral admissions, and thus supports the conclusion that the instruction need not be 

given sua sponte. The decisional law at the time the Legislature adopted section 

859.5, however, required the cautionary instruction on admissions to be given sua 

sponte. There is no reason to believe that, in requiring a special cautionary 

instruction in cases in which law enforcement has not complied with the statutory 

requirements for recording the statements of juveniles suspected of homicide, the 

Legislature implicitly intended to change the law applicable to other cases. 

Defendant, on the other hand, argues that the Legislature‟s adoption of 

section 859.5, subdivision (e)(3) demonstrates that, contrary to the Attorney 

General‟s argument, the Legislature concluded that the general instructions 

concerning witness credibility are not an adequate substitute for a cautionary 

instruction concerning a defendant‟s statements. We disagree. There is no 

indication that the Legislature thought that the general instructions on witness 

credibility would be insufficient in cases not addressed by section 859.5. The 

special instruction contemplated in section 859.5 is intended to be a remedy for 

law enforcement‟s failure to follow that law. (§ 859.5, subd. (e).) 

Finally, defendant contends that elimination of the sua sponte duty to give 

the general cautionary instruction concerning admissions would create an equal 

protection problem, because defendant is assertedly similarly situated to the 
22

juvenile defendants to whom section 859.5 applies. Defendant is not similarly 

situated to juvenile murder suspects who are interrogated in custody in violation of 

section 859.5. No law requires that a defendant‟s admissions be recorded. In 

adopting section 859.5, the Legislature explicitly recognized the special problems 

created by the custodial interrogation of juvenile suspects, and the corresponding 

need for accurate recordings of those interrogations, particularly in murder cases. 

(Sen. Bill No. 569 (2013-2014 Reg. Sess.) § 1 [legislative findings].) These 

special problems clearly are not applicable in defendant‟s case, in which the oral 

admissions at issue were not made during a police interrogation and defendant was 

not a murder suspect. 

C. Harmless error 

We need not decide whether the new rule we announce today —

eliminating the court‟s sua sponte duty to give the cautionary instruction on 

defendant‟s extrajudicial statements — applies retroactively because, in any event, 

the omission of the cautionary instruction was harmless. We apply the standard 

for state law error: Whether it is reasonably probable the jury would have reached 

a result more favorable to defendant had the instruction been given. (People v. 

Watson (1956) 46 Cal.2d 818, 835-836.) Failure to give the cautionary instruction 

is not a violation of federal due process warranting the “more stringent standard”

of review for federal constitutional error. (Carpenter, supra, 15 Cal.4th at p. 393.) 

“Since the cautionary instruction is intended to help the jury to determine whether 

the statement attributed to the defendant was in fact made, courts examining the 

prejudice in failing to give the instruction examine the record to see if there was 

any conflict in the evidence about the exact words used, their meaning, or whether 

the [statements] were repeated accurately.” (People v. Pensinger (1991) 52 Cal.3d 

1210, 1268.) 
23

Concerning the convictions for criminal threats, the testimony of Eduardo, 

Marta, and Indira regarding the substance and meaning of defendant‟s threatening 

statements was largely consistent. Each testified that defendant told Eduardo that 

if he did not die this time, he would die the next time. Each also testified that 

defendant said she would kill their entire family. Even though Eduardo could not 

remember all that had been said to Indira, Marta and Indira both testified that 

defendant had told Indira that she was going to “pay for this.” The minor 

variations in the exact wordings of these statements are not the sort of 

inconsistencies that would cause a jury to question whether the statements were 

actually made, even when the testimony is viewed with caution. Not only was this 

testimony generally consistent, but there was no evidence contradicting these 

witnesses‟ testimony that the statements were made. (See People v. Dickey, supra,

35 Cal.4th at p. 906 [“Where there was no such conflict in the evidence, but 

simply a denial by the defendant that he made the statements attributed to him, we 

have found failure to give the cautionary instruction harmless.”].) 

Defense counsel did make two arguments in an attempt to cast doubt on the 

prosecution‟s evidence of criminal threats. First, defense counsel contended that if 

defendant had made the threats, the jury would be able to hear these threats on a 

911 call that Marta made during the attack. The prosecution played a recording of 

the call for the jury and the court provided a translated transcript. The recording 

of the 911 call contains roughly 60 seconds during which a female voice can be 

heard screaming but the actual words are mostly incomprehensible. Given the 

recording‟s inconclusive nature, it is not reasonably probable that the jury would 

have been more likely to find it exonerating had the trial court given the 

cautionary instruction.

Second, in an apparent attempt to suggest to the jury that the witnesses had 

conspired to present false testimony, defense counsel asked Eduardo, Marta, and 
24

Indira whether they had discussed the attack prior to trial. After each replied in 

the negative, the defense suggested to the jury in closing arguments that this was 

“a really bad, huge fat lie.” No evidence suggested that the witnesses had 

coordinated their testimony. It is unlikely that this argument would have been 

significantly bolstered by provision of the cautionary instruction.

Furthermore, the instructions provided by the trial court concerning witness 

credibility informed the jury of the need to evaluate the witnesses‟ testimony for 

possible inaccuracies and determine whether the statement was in fact made. The 

jury was instructed with CALCRIM No. 226, which sets out the numerous factors 

the jury may consider in deciding whether a witness‟s testimony is credible. 

“[W]hen the trial court otherwise has thoroughly instructed the jury on assessing 

the credibility of witnesses, we have concluded the jury was adequately warned to 

view their testimony with caution.” (People v. McKinnon, supra, 52 Cal.4th at 

p. 680; see Carpenter, supra, 15 Cal.4th at p. 392 [finding trial court‟s instruction 

on witness credibility prevented prejudice where there was no evidence that the 

statements were not made].) 

Turning to the attempted murder conviction, defendant argues that the trial 

court‟s failure to give the cautionary instruction was prejudicial because the 

evidence of the defendant‟s statements was used to prove the intent element of 

attempted murder and the finding that the attempted murder was deliberate and 

premeditated. In addition to the evidence of defendant‟s criminal threats discussed 

above, Indira testified that defendant told Eduardo, as the women dragged him out 

by his hair, that she was going to kill him. A police investigator who interviewed 

Marta three days after the stabbing testified that Marta told him that defendant had 

shouted “Die! Die! Die!” during the attack. Although, in her testimony, Marta 

denied relaying those words to the investigator, she testified that she remembered 

defendant saying “If you don‟t die from this one, you‟ll die from the next one.”
25

The absence of the cautionary instruction was not prejudicial as to the 

attempted murder conviction or the finding that the attempted murder was 

deliberate and premeditated. Although the prosecution referred to the “Die! Die! 

Die!” language in closing arguments, it expressly acknowledged that it was 

uncertain whether this statement was made. Although the statement described by

Marta in court was different from the statement described by the investigator, her 

testimony also strongly suggested an intent to kill. No evidence contradicted 

Indira‟s statement that defendant told Eduardo she was going to kill him, and the 

circumstantial evidence strongly supported the prosecution‟s theory that defendant 

had planned the attack. The jury heard testimony from Eduardo, Marta, and Indira 

that defendant snapped her fingers and whistled to call forth associates — young 

gang members — who were lying in wait, and that one of them stabbed Eduardo

repeatedly in defendant‟s presence. In light of all the evidence, it is not reasonably 

probable that the jury would have returned a verdict more favorable to defendant 

on the attempted murder count had the trial court provided the cautionary 

instruction. Accordingly, we conclude that the omission of the cautionary 

instruction in this case was harmless.

III. CONCLUSION

The decision of the Court of Appeal is affirmed. 

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Diaz

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 208 Cal.App.4th 711

Rehearing Granted

__________________________________________________________________________________

Opinion No. S205145

Date Filed: April 6, 2015

__________________________________________________________________________________

Court: Superior

County: Santa Clara

Judge: Ron M. Del Pozzo

__________________________________________________________________________________

Counsel:

Dallas Sacher and Syda Kosofsky, under appointments by the Supreme Court, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, 

Assistant Attorney General, Laurence K. Sullivan, Jeffrey M. Laurence, Stan Helfman, Christopher J. Wei,

Luke Fadem and Masha A. Dabiza, Deputy Attorneys General, for Plaintiff and Respondent.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Dallas Sacher

100 N. Winchester Boulevard, Suite 310

Santa Clara, CA 95050

(408) 241-6171

Masha A. Dabiza

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5515