P v. Jimenez (3rd Dist.) Antique Jury Instruction Held to Still Be Valid

This opinion proves California does not believe its citizens subscribe to Thumper the rabbit's admonishment that "if you don't have something nice to say, don't say anything."  Rather the courts have decided we instead follow the aphorism "If all you have are nice things to say, don't say anything." 

Mr. Jimenez was accused of raping his niece, Jane Doe.  At Jimenez's trial, another family member, one  Mr. Hoffman, was asked whether he had ever talked to anyone about Doe's character for telling the truth.  Hoffman said, "no, never".  

As part of his defense, Jimenez called Doe's mother and Doe's friend as witnesses.  The friend testified that Doe's reputation within the family was that of a liar.  Doe's mother testified that it was difficult for Doe to tell the truth.  

At the close of evidence, the trial court instructed the jury, including CalCrim 105, which states:

[i]f the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.

The jury convicted Jimenez and he appealed, arguing that giving CalCrim 105 required reversal.
The Thrid District affirms. 

The jury instruction has its origin in a case from 1902, is based on what the court terms "common sense", and retains its legality in modernity.  Jimenez argues that the case law actually holds that the instruction is only applicable when there is first evidence of good character, then followed by evidence that the witness' reputation for bad character was never discussed.  The panel disagrees.  Finally Jimenez makes an argument to which the panel's response is unsatisfying.  Jimenez points out that the condition precedent for the instruction is "the evidence establishes that a witness' character for truthfulness has not been discussed among the people who know him or her,"  And did the evidence really establish this?  It doesn't seem so since Doe's friend testified she had heard from Doe's family members that Doe was a liar.  Hoffman's testimony established that he had not discussed Doe's character with family members.  But in the face of Mom's and friend's testimony, did Hoffman really establish that Doe's reputation has not been discussed among those who know her?  Either Jimenez didn't frame his argument in this fashion, or the panel had no answer and omitted any discussion of the issue because it conflicted with the desired outcome.