is deemed to have excepted to court giving an instruction refusing to give an

Is deemed to have excepted to court giving an

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is deemed to have excepted to court “giving an instruction, refusing to give an instruction, or modifying an instruction requested . . . . (Code Civ. Proc, § 647; Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 9; Chapman v. Enos (2004) 116 Cal.App.4th 920, 927-928; National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 428.) The Chapman standard applies to instructional error in commitment proceedings where the element of the commitment standard is misstated or omitted. ( In re Howard N. (2005) 35 Cal.4th 117, 137 [omit an element in juvenile commitment]; People v. Roberg (2003) 29 Cal.4th 979, 989 [SVP]; People v. Hurtado (2002) 28 Cal.4th 1179, 1194 [misinstruct on elements of SVP]; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274-1278 [competency trial]; People v. Noble (2002) 100 Cal.App.4th 184, 191 [misinstruct on elements and burden of proof of MDO]; Conservatorship of Buchanan (1978) 78 Cal.3d 241, 288. disapproved on other grounds in Conservatorship of Early (1983) 35 Cal.3d 244, 255; see People v. Mickle (1991) 54 Cal.3d 140, 198 (conc. opn. of Mosk, J.) [competency]; see People v. Medina (1990) 51 Cal.3d 870, 922 (dis. opn. of Broussard, J.) [competency]; but see People v. Marks (2003) 31 Cal.4th 197, 222 [error in competency instruction that was not constitutionally based]; People v. Cossgrove (2002) 100 Cal.App.4th 1266, 1273-1276 [directed verdict in MDO trial].) Juror misconduct in civil cases exists. (See, e.g., Province v. Center for Women’s Health & Family Birth (1993) 20 Cal.App.4th 1673, 1679-1680 [reversal in civil case from juror reading newspapers and discussing it at deliberations]; Rinker v. County of Napa (9th Cir. 1983) 727 F.2d 1352, 1354.) But, at most, it is a due process violation. The state constitutional right jury trial (art. I, § 16) is broader than the federal provision. (See, e.g., People v. Nesler (1997) 16 Cal.4th 561, 578-582 [under California law, if proven actual juror misconduct, there is a rebuttable presumption of prejudice]; People v. Ernst (1994) 8 Cal.4th 441, 444, 448 [waiver of right to jury requires personal waiver by the defendant]; Tracy v. Municipal Court (1978) 22 Cal.3d 760 [right to jury in any misdemeanor].) The right against the discrimination of jurors under Wheeler the same as under Batson . ( People v. Yeoman (2003) 31 Cal.4th 93, 117.) BEYOND A REASONABLE DOUBT STANDARD The beyond a reasonable doubt standard applies to the states. ( In re Winship (1970) 397 U.S. 358, 365-367.) It applies in delinquency cases. ( Ibid. ) In involuntary commitment schemes, the federal constitution requires a finding only by clear and convincing evidence. ( Foucha v. Louisiana (1992) 504 U.S. 71, 86; Addington v. Texas (1979) 441 U.S. 418, 431-433.) California’s requirement of proof beyond a reasonable doubt is based on statutes and the state’s due process and equal protection clauses. ( Conservatorship of Roulet (1979) 23 Cal.3d 219, 235 [LPS]; People
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v. Thomas (1977) 19 Cal.3d 630, 644 [CRC]; People v. Feagley (1975) 14 Cal.3d 338, 376 [unanimity for MDSO]; People v. Burnick (1975) 14 Cal.3d 306, 322 [beyond a reasonable doubt for MDSO].) In commitment proceedings, there can be a federal equal protection violation to deprive certain civil commitment defendants rights the state grants other civil commitment defendants. (See Jackson, supra, 406 U.S. at pp. 728-730; Baxstrom, supra, 383 U.S. at pp. 111-114.)
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