Wednesday, May 20, 2026
Page 3
Court of Appeal:
No Error in Using Jury Instruction Approved After Offense
Opinion Rejects Claim That Instructing Panel That Alleged Suicide Attempt May Be Considered as Evidence of Consciousness of Guilt Violated Due Process Because Advisement Was Only Added Four Years After Crime
By a MetNews Staff Writer
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WYN LEUNG |
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Div. One of the First District Court of Appeal has affirmed the judgment of conviction of a man accused of stabbing his wife to death inside a San Francisco church after a Palm Sunday service, and turning the blade on himself after the attack, rejecting the defendant’s contention that the trial judge erred in giving a jury instruction regarding consciousness of guilt that was created four years after the offense in question.
Acknowledging that the instruction was not yet a part of the California Criminal Jury Instructions (“CALCRIM”) in 2018, when the fatal attack occurred, the court said that using the advisement did not amount to a due process violation because it simply clarified a principle that was recognized by case law at the time the crime was committed.
Monday’s unpublished opinion, authored by Justice Kathleen Banke and joined in by Presiding Justice James M. Humes and Justice Charles A. Smiley, also rejects the defendant’s assertion that the use of the consciousness-of-guilt instruction is improper where the only issue is premeditation, recognizing that awareness of a party’s culpability may not conclusively establish that the defendant harbored the requisite mens rea but declaring:
“This does not mean, however, that evidence of a defendant’s conduct after committing the alleged crime, including conduct indicating consciousness of guilt, is irrelevant to the defendant’s intent at the time he committed the criminal act.”
Consciousness of Guilt
At issue is CALCRIM 378, which is entitled, “Consciousness of Guilt: General,” and provides a fill-in-the-blank format to allow flexibility as to what sort of conduct may be considered as evidence that the perpetrator was cognizant of his culpability. In the defendant’s case, the trial judge advised the jury that if the party “stabbed himself or resisted detention, that conduct may show that he was aware of his guilt.”
The Judicial Council added the instruction in March 2022 following the 2021 decision by Div. Two of the Fourth District Court of Appeal in People v. Pettigrew, in which prosecutors argued that the defendant had shown consciousness of guilt by attempting to commit “the ultimate flight” of suicide after he had been arrested for murder based on a standard CALCRIM advisement concerning attempts to flee.
Div. Two declared that, although cases dating back to the 1950s recognize that attempts at self-harm may be relevant to a party’s consciousness of guilt, the instruction was erroneously given where “flight” implied an intent to escape prosecution, and the defendant’s purposes in trying to harm himself were unknown.
In a footnote, the court encouraged the Judicial Council to “consider drafting a more general instruction that might be used in cases that do not fit within the…specific consciousness of guilt instructions.”
Due Process Challenge
Arguing that the use of CALCRIM 378 violated his due process rights was Wyn Leung, who was found guilty by a jury in early 2024 for the murder of his wife, Jieyun Zhou, on March 25, 2018, inside the Ingleside Heights-area Chinese Christian Church. San Francisco Superior Court Judge Brendan P. Conroy sentenced him to 25 years to life in prison in June 2024.
On appeal, Leung complained that the jury was improperly given the modified instruction and asserted that the prosecutor requested the advisement for the improper purpose of suggesting to the jury that consciousness of guilt is tantamount to premeditation.
Banke wrote:
“Defendant is correct that CALCRIM No. 378 was adopted by the Judicial Council four years after he committed his crimes….However, while this instruction may have been a ‘new’ CALCRIM instruction, defendant is incorrect in urging [that] including it in the instructions to the jury violated his due process rights.”
She continued:
“[T]here is no merit to defendant’s claim that by instructing the jury with CALCRIM No. 378, the trial court subjected defendant to ‘new’ law thereby compromising his due process rights. To the contrary, the law as to which the jury was instructed has been on the books for more than seven decades.”
The jurist pointed out that “defendant has…forfeited [the] claim” that the advisement was given for an improper purpose because, “after having had a chance to review CALCRIM No. 378, he made no objection…on the basis that it was an ill-disguised effort by the prosecutor to encourage the jury to reject the defendant’s claim he acted in the heat of the moment.” However, she remarked:
“But even had the issue been preserved, there is no merit to his assertion that the trial court committed prejudicial error in instructing the jury with CALCRIM No. 378.”
Requisite Mens Rea
Recognizing that Leung “is correct that consciousness of guilt, in and of itself, does not establish that the defendant harbored the requisite mens rea at the time he committed the charged crime,” she said:
“It…does not mean that instructing on consciousness of guilt is necessarily error, let alone prejudicial error, in any case where the defendant does not disavow that they committed the alleged criminal act and disputes only their intent while doing so.”
Distinguishing a case cited by the defendant, she commented:
“We are not dealing here with a note from the jury indicating it had found the defendant had not acted with the requisite intent at the time of the killing and wanting to know if it could look to the defendant’s intent while engaging in subsequent conduct to supply the missing requisite intent.”
The jurist added:
“[W]e are dealing with a case where the defendant pleaded not guilty to the murder charge, putting all the elements of the crime at issue….The prosecutor did refer to defendant’s stabbing himself after he had killed his wife, but did so in rebutting defendant’s claim that he had acted in the heat of passion and was guilty only of voluntary manslaughter (on which the jury was instructed). This was not an improper reference to this evidence.”
The case is People v. Leung, A170937.
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