Diaz

We granted review to resolve a conflict in the Courts of Appeal regarding whether a trial court has the duty to instruct a jury to consider a criminal defendant’s out-of-court statements with caution when the statements at issue form the basis of a prosecution for making criminal threats. We also asked the parties to brief whether we should continue to require courts to instruct that a defendant’s out-of-court statements must be viewed with caution even in the absence of a request.

We hold that the cautionary instruction is applicable when the statements at issue are criminal threats. However, the trial court is no longer required to give the instruction sua sponte. In the present case, the failure to give the instruction, even if error, was harmless.

I. Facts and Procedure

Defendant Dora Diaz was charged with and convicted of one count of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 189, 664, subd. (a)) and three counts of threatening to commit a crime resulting in death or great bodily injury (§ 422). The jury found defendant guilty on all four counts and the trial court sentenced her to a prison term of life, with the possibility of…