Can a jury "may" reject testimony from a witness's pre-trial statement?

CALCRIM No. 318, by its terms, permitted jurors to use a witness's pretrial statements in "two ways." First, jurors "may" use the statements to "evaluate whether the witness's testimony in court is believable." Second, jurors "may" use the witness's pretrial statements "[a]s evidence that the information in those earlier statements is true." Had this instruction created, as defendant claims, a mandatory presumption that the witness's trial testimony was false, the instruction would have used mandatory language. It did not. Rather, as set forth above, it used the permissive term, "may," a term neither ambiguous, unusual, nor purporting to create any presumption, whether for or against the veracity of a witness statement. As such, we decline to presume the jury, composed of men and women of reasonable intelligence, was incapable of understanding or following it. (People v. Hudson (2009) 175 Cal.App.4th 1025, 1028-1029 [because CALCRIM No. 318 states the jury "may" reject testimony if inconsistent with a pretrial statement, there is no basis for defendant's claim the instruction lessens the prosecution's standard of

Page 16