In what circumstances will a court refuse to give a cautionary instruction to a jury in a case where a witness testified that two of the robbers urged the manager to shoot the manager?

In People v. Diaz (2015) 60 Cal.4th 1176, 1189, the court rejected a long-standing rule imposing a sua sponte obligation on the trial court to give the cautionary instruction found in CALCRIM No. 358. The court explained that "in light of a change in the law that requires the general instructions on witness credibility to be given sua sponte in every case, the cautionary instruction is not one of the general principles of law upon which a court is required to instruct the jury in the absence of a request." (Ibid.)

In any event, the omission of the cautionary instruction in this case was harmless. "We apply the standard for state law error: Whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. [Citation.] Failure to give the cautionary instruction is not a violation of federal due process warranting the 'more stringent standard' of review for federal constitutional error." (People v. Diaz, supra, 60 Cal.4th 1176.) Multiple witnesses testified that one of the robbers urged the other to shoot the manager and the other robber shot the manager.

Page 18