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People v. Mayfield1/2/1997
ruct the jury that evidence of a defendant's oral admissions must be viewed with caution ( People v. Stankewitz, (supra) , 51 Cal. 3d 72, 94; People v. Beagle (1972) 6 Cal. 3d 441, 455 [99 Cal. Rptr. 313, 492 P.2d 1]), except that this cautionary instruction is inapplicable, and should not be given, if the oral admission was tape-recorded ( People v. Hines (1964) 61 Cal. 2d 164, 173 [37 Cal. Rptr. 622, 390 P.2d 398], overruled on other grounds by People v. Murtishaw (1981) 29 Cal. 3d 733, 774-775, fn. 40 [175 Cal. Rptr. 738, 631 P.2d 446]). Nevertheless, defendant contends that the instructions as given were misleading because the jury might have interpreted them as meaning that if defendant's tape-recorded admissions "proved" the non-tape-recorded admission, then none of defendant's oral admissions needed to be viewed with caution.
We disagree. Defendant's contention is reviewed by asking whether there is a reasonable likelihood that the jury understood the instruction as defendant asserts. ( People v. Raley (1992) 2 Cal. 4th 870, 899 [8 Cal. Rptr. 2d 678, 830 P.2d 712].) We conclude there is not such a reasonable likelihood. The most obvious meaning of "oral statement . . . proved by a tape recording" is a statement recorded on a tape that was received in evidence at trial. There is no reasonable likelihood that the jury understood the words to apply also to non-tape-recorded oral statements proved through testimony that was indirectly corroborated or supported by a tape recording.
To eliminate any possibility of confusion, the trial court referred to Deputy Stein's testimony about defendant's postarrest statements and Detective Amicone's testimony relating a statement by Roy Mayfield apparently summarizing statements by defendant as evidence to which the cautionary instruction would apply. As an example of evidence to which the cautionary instruction would not apply, the trial court referred to the tape recordings of the hostage negotiations. Defendant argues, however, that the trial court's awkward language added to rather than eliminated the potential confusion and could have caused the jury to conclude that it need not view any admission with caution and that it was to take it as established that Roy Mayfield's statement to Detective Amicone was in fact a summary of an admission by defendant.
We disagree. We have carefully reviewed the trial court's explanation, and we conclude that there is no reasonable likelihood that the jury misconstrued it in the manner asserted by defendant.
O. Jury Instructions Regarding Use of Unreasonable or Excessive Force in Self-defense
The court instructed the jury on self-defense. Among others, the court gave this instruction:
"An officer is not permitted to use unreasonable or excessive force in detaining or attempting to detain a person for questioning.
" If an officer does use unreasonable or excessive force in detaining or attempting to detain a person for questioning, the person being detained may lawfully use reasonable force to protect himself.
"Thus, if you find that the officer used unreasonable or excessive force in making or attempting to make the detention that is in question, and that the defendant used only reasonable force to protect himself, the defendant is not guilty of the offense charged in Count 1 or of any lesser and necessarily included offense." (Italics added.)
Defendant contends that the instruction as given is incomplete and misleading because it does not state that if a person uses unreasonable or excessive force in response to an officer's use of unreasonable or excessive force, a killing that results is without malice and at most
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