People v. Valenzuela

Opinion

FRANSON, J.

Appellant was convicted following trial by jury of burglary in the first degree and four counts of robbery in the first degree, The sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury about the credibility of witnesses at the close of argument even though it had instructed the jury on this subject three days earlier, following the opening statements. For the reasons to be explained we hold that while the trial court did not prejudicially err in failing to reinstruct the juiy, it would have been the better practice to have done so.

The pertinent facts giving rise to appellant’s convictions are as follows: On July 1, 1976, seven persons were residing in a house at 312 North A Street, Arvin, California. Sometime after 1 a.m. a man subsequently identified by five of the victims as appellant forcibly entered the house with a .22 caliber rifle. He was accompanied by two other men. The trio proceeded to take money at gun point from five of the occupants of the house. At trial appellant denied his guilt.

The trial court instructed the jury at the close of the opening statements concerning the credibility of witnesses. (CALJIC Nos. 2.20, 2.21, 2.22.) During the closing arguments both counsel discussed the law on the credibility of witnesses and attempted to paraphrase part of the instructions previously given on the subject. Thereafter, the trial court gave its final instructions to the jury but did not repeat the instructions on credibility.

Discussion

Penal Code section 1093 sets forth the order of procedure in a criminal trial. Subdivision 6, which is numbered after the introduction of evidence and argument to the jury, provides: “The judge

may

then charge the jury, and

must do so

on any points of law pertinent to the issue,

if requested by either party,

... At the beginning of the trial or from

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