Does the late instruction on attempted criminal threat reduce the prosecution's burden of proof?

The late instruction on attempted criminal threat did not reduce the prosecution's burden of proof. Although the jury did not need to find all of the elements of criminal threat in order to convict defendant of attempted criminal threat (see People v. Toledo (2001) 26 Cal.4th 221, 231), the jury was still required to find all of the elements of attempted criminal threat beyond a reasonable doubt. The trial court, in fact, specifically repeated the reasonable doubt instruction to ensure the jury understood this.

The late instruction also did not deprive defendant of due process or fair notice. First, instructions on lesser necessarily included offenses do not surprise either party "because, by definition, the stated charge gives notice to both that all the elements of any such offense are at issue." (People v. Birks (1998) 19 Cal.4th 108, 112.) Second, under the circumstances here, the late instruction did not unfairly surprise defendant. Defendant had initially argued that the jury should not convict him of count 1 because "there was no threat that was made," and because someone who was in sustained fear would not have stayed in the bar and continued to drink alcohol. Trial counsel did not have to make an inconsistent argument following the attempted criminal threat instructionhe could have simply reiterated his prior argument that "there was no threat that was made."

Last, the late instruction did not improperly encourage the jury to reach a verdict. Defendant cites to People v. Gainer (1977) 19 Cal.3d 835, 852 (disapproved of by People v. Valdez (2012) 55 Cal.4th 82, 163), in which the court held that "it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried." Here, however, the instruction did neither of those prohibited items; it simply advised the jury it could consider convicting defendant of attempted criminal threat, and it informed the jury of the elements of that offense. Moreover, the instruction was accompanied by the trial court's admonition "not to consider anything I

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