CALCRIM No. 226 Survives Appellate Challenge

In People v. Wamer, case no. F051027 (5th Dist. Sept. 12, 2007), the Court of Appeal holds that CALCRIM No. 226 does not impermissibly lighten the prosecutor’s burden of proof.  Wamer, convicted of murder, contended that the last paragraph of the instruction lightened the prosecutor’s burden by its use of the words in bold italics in the below excerpt (emphasis added), the last paragraph of the instruction:

If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says.  Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

The Court of Appeal finds that CALCRIM No. 226 is essentially equivalent to another criminal jury instruction that has withstood challenge in the Supreme Court.  That instruction is CALJIC No. 2.21.2:

A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others.  You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.

Warner’s emphasis on “should” ignores the word following: “CALCRIM No. 226 states that the jury “should consider not believing” – not that the jury should not believe – anything in the testimony of a witness who lied about something significant.” (Emphasis added.)

In the end, the court finds the differences to be semantic only:

Since Warner fails to persuade us that semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are even material, let alone prejudicial, we reject his challenge to the former by deferring to a long line of California Supreme Court cases rebuffing analogous challenges to the latter. 

So CALCRIM No. 226 is safe for now.