Filed 12/18/13 P. v. Bryant CA4/1 

Opinion following remand from Supreme Court 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

AMALIA CATHERINE BRYANT, 

 Defendant and Appellant. 

 D057570 

 (Super. Ct. No. SWF014495) 

 APPEAL from a judgment of the Superior Court of Riverside County, Timothy F. 

Freer, Judge. Affirmed. 

 Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Gary W. Schons, Senior Assistant Attorney General, James H. Flaherty III, and 

Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent. 
2 

I. 

INTRODUCTION 

 Amalia Catherine Bryant killed her boyfriend with a knife. A jury found Byrant 

not guilty of first degree murder, but guilty of second degree murder (Pen. Code, §§ 187, 

subd. (a), 189).1 The jury also found that Bryant personally used a deadly or dangerous 

weapon within the meaning of section 12022, subdivision (b)(1), in committing the 

murder. The trial court sentenced Bryant to an aggregate term of 16 years to life in 

prison. 

 In her initial briefing on appeal, Bryant claimed that the trial court erred in failing 

to instruct the jury sua sponte on involuntary manslaughter as a lesser included offense of 

murder, on the theory that she killed unlawfully while committing the misdemeanor 

offense of brandishing a weapon or performing a lawful act with criminal negligence. 

After the People filed their respondent's brief, we requested supplemental briefing 

concerning whether the trial court committed reversible error by not instructing the jury 

sua sponte that an unintentional killing without malice during the course of an inherently 

dangerous assaultive felony constitutes voluntary manslaughter. (See People v. Garcia

(2008) 162 Cal.App.4th 18, 31 (Garcia) [stating that "an unlawful killing during the 

commission of an inherently dangerous felony, even if unintentional, is at least voluntary 

manslaughter" (italics added)].) We further instructed the parties to assume that the 

 

1 Unless otherwise specified, all subsequent statutory references are to the Penal 

Code. 
3 

People were correct that Bryant committed, at a minimum, a felony assault with a deadly 

weapon. 

 Bryant filed a supplemental brief in which she argued that the trial court should 

have instructed the jury on voluntary manslaughter, based on the theory set forth in our 

request for supplemental briefing, and that the error was prejudicial. The People 

responded that there was no evidentiary basis for the instruction and, alternatively, that 

any error in failing to instruct the jury on this theory of voluntary manslaughter was 

harmless. In our initial opinion in this matter, we reversed Bryant's murder conviction, 

concluding that "the trial court erred in failing to instruct the jury on the lesser included 

offense of voluntary manslaughter, based on the theory articulated in Garcia." (People v. 

Bryant (Aug. 9, 2011, D057570), review granted and opn. ordered nonpub. Nov. 16, 

2011, S196365.)2

 The Supreme Court granted the People's petition for review and reversed our 

judgment. (People v. Bryant (2013) 56 Cal.4th 959, 971 (Bryant).) The Supreme Court 

concluded: 

 

2 We rejected Bryant's claims that the trial court erred in failing to instruct the jury 

sua sponte on involuntary manslaughter as a lesser included offense of murder on the 

theory that Bryant killed unlawfully in the commission of misdemeanor brandishing a 

weapon or in the commission of a lawful act committed with criminal negligence, 

reasoning that the evidence established that Bryant committed, at a minimum, an assault 

with a deadly weapon. (People v. Bryant, supra, D057570.) 
4 

"A defendant who has killed without malice in the commission of an 

inherently dangerous assaultive felony[3] must have killed without 

either an intent to kill or a conscious disregard for life. Such a 

killing cannot be voluntary manslaughter because voluntary 

manslaughter requires either an intent to kill or a conscious disregard 

for life. To the extent that [Garcia, supra, 162 Cal.App.4th at page 

31] suggested otherwise, it is now disapproved. 

"Because a killing without malice in the commission of an inherently 

dangerous assaultive felony is not voluntary manslaughter, the trial 

court could not have erred in failing to instruct the jury that it was." 

(Bryant, supra, at p. 970.) 

 The Supreme Court expressly "decline[d] to address [Bryant's] alternative 

contention that, because assault with a deadly weapon is not an inherently dangerous 

felony, the trial court erred in failing to instruct the jury on the theory of involuntary

manslaughter recognized in [People v. Burroughs (1984) 35 Cal.3d 824 (Burroughs)]." 

(Bryant, supra, 56 Cal.4th at pp. 970-971, italics added.) The Bryant court remanded the 

matter to this court for proceedings consistent with its opinion. (Id. at p. 971.) 

 In a concurring opinion, Justice Kennard concluded that "[b]ecause the defense 

here presented evidence from which the jury could have reasonably concluded that 

defendant lacked malice, but killed while committing an assault with a deadly weapon 

[citation], a jury instruction on involuntary manslaughter as a lesser offense necessarily 

included within the charged crime of murder would have been proper." (Bryant, supra, 

56 Cal.4th at p. 975 (conc. opn. of Kennard, J.), italics added.) However, Justice 

Kennard further concluded that the trial court did not have a sua sponte duty to provide 

 

3 Elsewhere in its opinion, the Supreme Court stated that "assault with a deadly 

weapon [is] an offense we assume to be inherently dangerous." (Bryant, supra, 56 

Cal.4th at p. 966.) 
5 

such an instruction in this case because the legal principle on which the instruction would 

be based "has been so 'obfuscated by infrequent reference and inadequate elucidation' that 

it cannot be considered a general principle of law." (Ibid., quoting People v. Flannel

(1979) 25 Cal.3d 668, 681(Flannel).) 

 On remand, Bryant claims that the trial court erred in failing to instruct the jury 

sua sponte that an unlawful killing committed without malice in the course of an 

assaultive felony constitutes the crime of involuntary manslaughter.4 In light of Supreme 

Court authority concerning a trial court's sua sponte instructional duties, we must reject 

Bryant's contention. 

 The Supreme Court has repeatedly held that a trial court has no sua sponte duty to 

instruct on a legal principle that has been "obfuscated by infrequent reference and 

inadequate elucidation." (Flannel, supra, 25 Cal.3d at p. 681; see also People v. 

Michaels (2002) 28 Cal.4th 486, 529 (Michaels) [a "trial court . . . has no duty 

to . . . instruct on doctrines of law that have not been established by authority"].) In this 

case, it is undisputed that there is no authority holding that an unlawful killing committed 

without malice in the course of an assaultive felony constitutes the crime of involuntary 

manslaughter. Thus, even assuming that the jury instruction that Bryant proffers in her 

 

4 Our rejection in People v. Bryant, supra, D057570, of Bryant's argument that the 

trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter as a 

lesser included offense of murder on the theory that she killed unlawfully in the 

commission of misdemeanor brandishing a weapon or in the commission of a lawful act 

committed with criminal negligence remains valid in the wake of the Supreme Court's 

reversal of our prior opinion on other grounds. Bryant does not contend otherwise. 
6 

briefing on remand is a correct statement of the law, under binding authority, the trial 

court had no sua sponte duty to provide such an instruction in this case. Accordingly, we 

affirm the judgment. 

II. 

FACTUAL BACKGROUND5

 "On November 24, 2005, neighbors responded to the apartment in which 

defendant lived with her boyfriend Robert Golden to find defendant screaming and 

Golden lying facedown in the front doorway. Defendant was pleading with Golden to 

'wake up.' Golden had a stab wound to the chest and no pulse; he was later pronounced 

dead at the hospital. During two police interviews and in testimony at trial, defendant 

recounted [the events that led to Golden's death]. She stated that during a physical 

altercation, she grabbed a knife from the kitchen and threatened to hurt Golden if he did 

not let her leave. Golden lunged for the knife, and the two struggled over it. Defendant 

broke free with the knife in her hand. When Golden [advanced] toward defendant, she 

made a thrusting motion at him with the knife, and it went into his chest. Defendant 

claimed that she never intended to kill Golden. 

 "The trial court instructed the jury on first degree premeditated murder, second 

degree murder, and voluntary manslaughter based upon heat of passion and unreasonable 

self-defense, as well as the defense of reasonable self-defense. The jury convicted 

defendant of second degree murder and found true the allegation that she personally used 

 

5 Our factual background is taken from the Supreme Court's opinion in this matter. 

(Bryant, supra, 56 Cal.4th at pp. 963-964.) 
7 

a deadly weapon. The trial court sentenced defendant to 15 years to life in prison for 

murder, plus a consecutive year for the weapon enhancement." (Bryant, supra, 56 

Cal.4th at pp. 963-964.) 

III. 

DISCUSSION 

The trial court did not err in failing to instruct the jury sua sponte that an unlawful 

killing committed without malice in the course of an assaultive felony constitutes the 

crime of involuntary manslaughter 

 Bryant claims that the trial court erred in failing to instruct the jury sua sponte that 

an unlawful killing committed without malice in the course of an assaultive felony 

constitutes the crime of involuntary manslaughter. 

A. The People's contention that this court should not address Bryant's claim is 

 without merit 

 The People maintain that this court should not consider Bryant's jury instruction 

claim on remand, and offer two reasons in support of this contention. First, the People 

maintain that Bryant's claim is not within the scope of the Supreme Court's remand. In 

support of this argument, the People contend that Bryant raised the same claim in the 

Supreme Court, and the Supreme Court declined to consider the claim and remanded the 

matter to this court "for further proceedings consistent" with its opinion. (Bryant, supra, 

56 Cal.4th at p. 971.) We are not persuaded. Our considering on remand an issue not

addressed by the Supreme Court is not inconsistent with the Supreme Court's opinion. 

Accordingly, we conclude that Bryant's claim is not outside the scope of the Supreme 

Court's remand. 
8 

 The People also contend that Bryant is presenting this claim for the first time on 

remand, and that in doing so, she is "engaging in piecemeal litigation that is prejudicial to 

the People." We agree that Bryant did not offer this theory of instructional error6 in her 

initial briefing on appeal, but we exercise our discretion to consider her claim, 

notwithstanding any possible forfeiture, for the following reasons. First, at the time 

Bryant filed her initial briefing on appeal, the Court of Appeal in Garcia had concluded 

both that "[a]n unintentional killing, without malice, during the commission of an 

inherently dangerous felony does not constitute involuntary manslaughter" (Garcia, 

supra, 162 Cal.App.4th at p. 26, italics altered) and that "an unlawful killing during the 

commission of an inherently dangerous felony, even if unintentional, is at least voluntary 

manslaughter." (Id. at p. 31.) However, in Bryant, our Supreme Court disapproved 

Garcia to the extent that it suggests that "[a] defendant who has killed without malice in 

the commission of an inherently dangerous assaultive felony" has committed voluntary

manslaughter. (Bryant, supra, 56 Cal.4th at p. 970.) Further, in her concurring opinion 

in Bryant, Justice Kennard expressly stated that "an assault with a deadly weapon [can] 

constitute an unlawful act that makes a killing occurring during the assault involuntary

manslaughter." (Bryant, supra, at p. 971 (conc. opn. of Kennard, J.).) Justice Kennard 

also observed that although the issue is not "a ground on which [the Supreme Court] 

granted review," it is an issue "closely connected to the facts of this case." (Ibid.) We 

 

6 Bryant did contend in her initial briefing on appeal that the trial court erred in 

failing to instruct the jury sua sponte on involuntary manslaughter, albeit for reasons 

different from those that she asserts on remand from the Supreme Court. (See fns. 2 and 

4, ante.) 
9 

conclude that there has thus been a material change in the law, warranting our exercise of 

discretion to consider Bryant's claim, despite her failure to present this argument in her 

initial briefing on appeal. 

 With respect to the People's contention that Bryant has engaged in "piecemeal 

litigation," we note that the position that the People took in the Supreme Court in this 

matter is directly contrary to the position they previously advocated in their opposition to 

Bryant's appeal in this court. As noted previously, after the initial briefing on appeal in 

this court was complete, we asked the parties to submit supplemental letter briefs 

addressing the following question: "Did the trial court commit reversible error by not 

instructing the jury sua sponte that an unintentional killing without malice during the 

course of an inherently dangerous assaultive felony constitutes voluntary manslaughter? 

(See [Garcia, supra, 162 Cal.App.4th 18].)" 

 In their response to our request, the People conceded the existence of such a sua 

sponte duty, stating in their supplemental letter brief, "[T]he trial court [had] a sua sponte 

duty to instruct on the Garcia theory of voluntary manslaughter if there were substantial 

evidence that appellant did not subjectively appreciate that her conduct endangered 

[Robert's] life." Notwithstanding their concession in this court of the existence of a trial 

court's sua sponte duty to instruct on the Garcia theory of voluntary manslaughter, where 

factually supported, the People argued in the Supreme Court that "the Garcia [court] did 

not articulate an additional theory of manslaughter" and that this court "adopted the 

Garcia theory of voluntary manslaughter as if [by] divine writ . . . ." 
10 

 Accordingly, in light of the material change in the law, the significant change in 

the People's litigation posture, and the People's failure to demonstrate any actual 

prejudice caused by Bryant's failure to raise this claim in her initial briefing on appeal, 

we exercise our discretion to consider Bryant's claim that the trial court erred in failing to 

instruct the jury sua sponte that an unlawful killing committed without malice in the 

course of an assaultive felony constitutes the crime of involuntary manslaughter, 

notwithstanding her failure to raise this claim in her initial briefing on appeal. 

B. The trial court did not have a sua sponte duty to instruct on Bryant's novel theory 

 of involuntary manslaughter 

 1. A trial court has no duty to instruct on a legal principle that has been so 

 "obfuscated by infrequent reference and inadequate elucidation" that it 

 cannot be considered a general principle of law (Flannel, supra, 25 Cal.3d 

 at p. 681.)

In Flannel, supra, 25 Cal.3d 668, the court considered whether a "[trial] court 

erred in failing to instruct the jury sua sponte that defendant's honest but unreasonable 

belief that he must defend himself from deadly attack negates malice so that the offense 

is reduced from murder to manslaughter." (Id. at p. 672.) The Flannel court 

acknowledged that "decisions, including those of this court, recognize, albeit without full 

discussion, that one who holds an honest but unreasonable belief in the necessity to 

defend against imminent peril to life or great bodily injury does not harbor malice and 

commits no greater offense than manslaughter." (Ibid.) The Flannel court further 

observed "it has been legal doctrine, even though infrequently applied in the past, that a 

genuine but unreasonably held belief negates the mental state of malice aforethought that 

is necessary for a murder conviction." (Id. at p. 682.) 
11 

 Despite the existence of such doctrinal underpinnings, the Flannel court held that 

the trial court in that case had no sua sponte duty to instruct the jury on the law of 

imperfect self-defense. (Flannel, supra, 25 Cal.3d at p. 682.) The Flannel court 

reasoned: 

"[A] trial court's duty to instruct sua sponte on this defense[7] arises 

only in a case in which the evidence presents issues relevant to 

'general principles of law.' When a rule applies so seldom that 

courts have found no occasion to give it full, substantive discussion 

and California Jury Instructions, Criminal (CALJIC) has not set it 

out as a standard instruction, we decline to proclaim that, heretofore, 

the rule expressed a general principle. We conclude that the court 

did not err in failing to instruct of its own motion." (Id. at p. 672.) 

 The Supreme Court explained its holding that a trial court has no sua sponte duty 

to instruct on novel legal theories, stating that such theories have not received sufficient 

elucidation to constitute a "general principle[] of law." (Flannel, supra, 25 Cal.3d at p. 

681.) The Flannel court reasoned: 

"[T]he sua sponte 'rule seems undoubtedly designed to promote the 

ends of justice by providing some judicial safeguards for defendants 

from the possible vagaries of ineptness of counsel under the 

adversary system. Yet the trial court cannot be required to anticipate 

every possible theory that may fit the facts of the case before it and 

instruct the jury accordingly. The judge need not fill in every time a 

litigant or his counsel fails to discover an abstruse but possible 

theory of the facts.' [Citation.] Given the undeveloped state of the 

unreasonable belief rule, we cannot impose upon the instant trial 

court so formidable a duty as to conceive and concoct an instruction 

 

7 In People v. Barton (1995) 12 Cal.4th 186, 200, the Supreme Court explained that 

" 'unreasonable self-defense' is . . . not a true defense; rather, it is a shorthand description 

of one form of voluntary manslaughter." 
12 

embodying that rule. 'The duty of the trial court involves 

percipience—not omniscience.' [Citations.]"8 (Id. at p. 683.) 

 Similarly, in Michaels, supra, 28 Cal.4th 486, the Supreme Court concluded that a 

trial court did not have a sua sponte duty to instruct on "unreasonable or imperfect 

defense of others" (id. at p. 529), because a "trial court . . . has no duty to so instruct on 

doctrines of law that have not been established by authority." (Ibid.) In reaching this 

conclusion, the Michaels court applied Flannel and its progeny: 

"Flannel held that a trial court was not required to instruct on 

imperfect self-defense until that defense was recognized by 

California decisions. ([Flannel, supra, 25 Cal.3d at pp. 680–683].) 

Applying the same analysis, courts have refused to require a trial 

court to instruct on its own motion that an unreasonable belief one is 

acting under duress is a partial defense to robbery (People v. 

Bacigalupo (1991) 1 Cal.4th 103, 125–126 (Bacigalupo I)); that 

imperfect self-defense is a defense to the crime of torture (People v. 

Vital (1996) 45 Cal.App.4th 441, 446); or that imperfect self-defense 

is a defense to the crime of mayhem (People v. Sekona (1994) 27 

Cal.App.4th 443, 451). 

"This reasoning governs here. At the time of defendant's trial, the 

concept of imperfect defense of others was not a commonly known 

and established defense. We acknowledge that this concept follows 

logically from the interplay between statutory and decisional 

law. . . . But the trial court here was not required to so instruct on its 

own motion, because the doctrine of imperfect or unreasonable selfdefense was not a well-established legal doctrine under California 

law." (Michaels, supra, 28 Cal.4th at p. 530.) 

 In sum, the Supreme Court has repeatedly held that a legal concept that has been 

referred to only infrequently, and then with " 'inadequate elucidation,' " cannot be 

 

8 Although the Flannel court concluded that the trial court did not have a sua sponte 

duty to instruct the jury in that case concerning the doctrine of imperfect self-defense, the 

Flannel court stated that in all subsequent cases, trial courts would have such duty. 

(Flannel, supra, 25 Cal.3d at p. 683.) 
13 

considered a general principle of law requiring a sua sponte jury instruction. (Flannel, 

supra, 25 Cal.3d at p. 681; accord In re Christian S. (1994) 7 Cal.4th 768, 774 ["We 

observed in [Flannel, supra, 25 Cal.3d at page 681] that the doctrine [of imperfect selfdefense] had been 'obfuscated by infrequent reference and inadequate elucidation' and 

thus, before the trial in that case, had not become a general principle of law requiring a 

sua sponte instruction"].) 

 2. The trial court had no sua sponte duty to instruct the jury that an unlawful 

 killing committed without malice in the course of an assaultive felony 

 constitutes the crime of involuntary manslaughter 

 In her supplemental brief on remand, Bryant offers two theories in support of her 

contention that the trial court erred in failing to instruct the jury sua sponte that an 

unlawful killing committed without malice in the course of an assaultive felony 

constitutes the crime of involuntary manslaughter. First, she argues that such an 

instruction was required pursuant to Burroughs, supra, 35 Cal.3d 824. In Burroughs, the 

Supreme Court stated, "[A]n unintentional homicide committed in the course of a 

noninherently dangerous felony may properly support a conviction of involuntary 

manslaughter, if that felony is committed without due caution and circumspection." (Id. 

at p. 835.) Second, Bryant argues that because manslaughter functions as a " 'catch-all' 

concept," which includes "all unlawful homicides that do not amount to murder . . . this 

Court should conclude that an unlawful killing without malice in the course of a felony 

assault with a deadly weapon is necessarily involuntary manslaughter . . . ." 

 Bryant does not dispute that there is no authority holding that an unlawful killing 

committed without malice in the course of an assaultive felony constitutes the crime of 
14 

involuntary manslaughter, pursuant to either theory.9 In light of the lack of authority in 

support of either theory of involuntary manslaughter, it is clear that pursuant to the 

Supreme Court law cited above, the trial court did not have a sua sponte duty to instruct 

the jury that an unlawful killing committed without malice in the course of an assaultive 

felony constitutes the crime of involuntary manslaughter.10 (See e.g., Michaels, supra, 

28 Cal.4th at p. 529 ["trial court . . . has no duty to instruct on doctrines of law that have 

not been established by authority"]; accord Flannel, supra, 25 Cal.3d at p. 682.)11

IV. 

 

9 Bryant expressly acknowledges that "there appears to be no currently valid 

published case which addresses the issue of whether the crime of assault with a deadly 

weapon is a felony inherently dangerous to life." Bryant also does not cite any case in 

which a court has relied on the "catch-all" nature of manslaughter to conclude that an 

unlawful killing committed without malice in the course of an assaultive felony 

constitutes the crime of involuntary manslaughter. 

10 In her concurring opinion in Bryant, Justice Kennard persuasively articulates why 

such an instruction is a proper statement of the law. (Bryant, supra, 56 Cal.4th at pp. 

971-975 (conc. opn. of Kennard, J.).) However, we need not expressly decide whether 

such an instruction is or is not a proper statement of the law, because even assuming that 

Justice Kennard's view is correct, there was no sua sponte duty to instruct in this case, for 

the reasons stated in the text. (See Bryant, supra, 56 Cal.4th at p. 975 (conc. opn. of 

Kennard, J.) [stating that while "a jury instruction on involuntary manslaughter as a lesser 

offense necessarily included within the charged crime of murder would have been 

proper," the trial court had no sua sponte duty to provide such an instruction, citing 

Flannel].) 

11 Bryant's supplemental brief contains a single sentence in which she argues, "[T]o 

the extent a request for such an instruction from trial counsel was required . . . appellant 

received the ineffective assistance of counsel." Bryant did not present this claim in her 

initial briefing on appeal, and she has not adequately briefed the issue of ineffective 

assistance of counsel in her supplemental briefing on remand. Accordingly, we deem 

Bryant's claim of ineffective of assistance of counsel forfeited for purposes of this appeal, 

and decline to consider the merits of that claim. 
15 

DISPOSITION 

 The judgment is affirmed. 

 

AARON, J. 

WE CONCUR: 

 

 NARES, Acting P. J. 

 

 McINTYRE, J. 
AARON, J. concurring: 

 While Bryant's claim fails in light of the Supreme Court authority discussed in the 

majority opinion, I write separately to express my disagreement with the "inadequate 

elucidation" doctrine (People v. Flannel (1979) 25 Cal.3d 668, 681) and to urge that it be 

reconsidered. In my view, a trial court's obligation to instruct sua sponte should turn not 

upon the frequency with which a principle appears in case law, but rather, upon the 

clarity of the legal principle involved and whether that principle applies to a given set of 

facts. (Cf. People v. Sedeno (1974) 10 Cal.3d 703, 715 [" '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 which are necessary for the jury's understanding of 

the case.' [Citation.]"].) 

To conclude otherwise allows the possibility that a defendant may stand convicted 

of an offense merely because the facts of the defendant's case do not fall within wellestablished doctrine, even if the law does not support the conviction. The fact that no 

court has previously articulated the validity of the defendant's appellate claim is not a 

sufficient reason to deny that defendant a new trial at which the jury is properly 

instructed. Most fundamentally, case law to the effect that a defendant is entitled only to 

jury instructions that are rooted in "well-established legal doctrine" (People v. Michaels

(2002) 28 Cal.4th 486, 530) represents, in my view, an unwarranted departure from the 

ordinary rule that decisions that "explain or refine the holding of a prior case, those which 
2 

apply an existing precedent to a different fact situation, even if the result may be said to 

'extend' the precedent, or those which draw a conclusion that was clearly implied in or 

anticipated by previous opinions," apply fully to a defendant's case on appeal. (People v. 

Guerra (1984) 37 Cal.3d 385, 399; see e.g., Correa v. Superior Court (2002) 27 Cal.4th 

444, 463, fn. 5 ["Our holding is applicable to defendant's case and applies fully 

retroactively, as is the norm for judicial decisions"].) 

 Courts ordinarily apply even a change in the law on direct appeal, regardless of 

whether the trial court could have reasonably been expected to have anticipated such a 

change. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1144 ["the general rule [is] 

that judicial decisions, even those overruling prior authority, have full retroactive 

effect"].) For example, if a trial court, relying on past Supreme Court precedents, 

instructs on an offense, that trial court is deemed to have erred if the Supreme Court 

overrules those precedents on appeal. (People v. Chun (2009) 45 Cal.4th 1172, 1200-

1201 (Chun).) In Chun, the court stated: 

"We overrule People v. Robertson [(2004)] 34 Cal.4th 156, and the 

reasoning, although not the result, of People v. Randle [(2005)] 35 

Cal.4th 987. This conclusion means the trial court erred in this case 

in instructing the jury on the second degree felony-murder rule." 

(Chun, supra, at p. 1201.) 

 In a footnote following this quotation, the Chun court explained that the trial court 

in that case had erred, even though the court had correctly applied the law as it existed at 

the time of trial: 

"When we say the trial court erred, we mean, of course, only in light 

of our reconsideration of past precedents. As of the time of 

trial, . . . ample authority supported the trial court's decision to 
3 

instruct on felony murder." (Chun, supra, 45 Cal.4th at p. 1201, fn. 

8.) 

I agree that, where warranted by an evolution in the law, a trial court may be 

reversed for instructional error even if the trial court correctly applied binding precedent 

in giving the instruction in question. If this is the case, then a trial court should be held to 

have committed reversible error for failing to instruct in accordance with the logical 

evolution of the law, where there is no controlling authority to the contrary. In short, the 

principal rationale that the Supreme Court has provided—the unfairness of requiring a 

trial court to anticipate developments in the law (Flannel, supra, 25 Cal.3d at p. 683)—is, 

in my view, an insufficient justification for creating an exception to the ordinary rule that 

"a trial court must instruct on the general principles of law governing the case, i.e., those 

principles relevant to the issues raised by the evidence." (Id. at pp. 680-681.) 

 A court commits error where it acts contrary to a higher court's articulation of the 

law, even if such error is understandable given the state of the law at the time the lower 

court acted. (See, e.g., Chun, supra, 45 Cal.4th at pp. 1200-1201; People v. 

Hendrix (2013) 214 Cal.App.4th 216, 239 ["We conclude that the trial court's legal 

analysis here was erroneous. The error is understandable because this case presents a 

significantly different context for the application of the decisional law related to 

[Evidence Code] section 1101, subdivision (b)"]; People v. Torres (2005) 127 

Cal.App.4th 1391, 1400-1401 ["As modified, the instruction thus required defendant to 

meet the burden of proving he was incapable of distinguishing right from both legal and 

moral wrong at the time he committed the crimes. This was error. [¶ ]The trial court's 
4 

focus on moral wrong was understandable in light of case law on the matter"].) I see no 

reason to employ a different rule with respect to the asserted instructional error of the 

type at issue in this case. 

 In sum, in my view, the novelty of application of a legal principle is not a 

sufficient basis upon which to conclude that a defendant should be deprived of the benefit 

of otherwise legally correct instruction on the applicable law. I would urge the Supreme 

Court to reconsider this aspect of Flannel and its progeny, while recognizing that, in the 

interim, this court remains bound by such precedent. 

 

AARON, J.