People v. Figueroa

REYNOSO, J., Concurring.

The instruction that the notes in question were “securities” was error because, as the majority makes clear, that proposition depended on questions of fact, relating to Kurrle’s participation in appellants’ business, which should have been submitted to the jury. (Ante, at pp. 734-741.) I agree that the trial court erred in excluding evidence on that subject. (Ante, at p. 740, fn. 31, p. 741.)

On that state of the record it is wholly unnecessary to decide whether, as the majority holds, an instruction that the notes were securities would be *742 erroneous no matter how convincing the evidence was on this issue {ante, pp. 733-734). The complexities involved are demonstrated by the sharp divisions in the federal and California decisions and the extended analysis the majority finds necessary to undertake before arriving at a conclusion. (See ante, pp. 727-734.) From that analysis the majority distills an absolute rule that apparently would prohibit in criminal trials, regardless of the state of the evidence, such instructions as one that a particular automobile is a motor vehicle or one that a particular gun is a firearm. (See United States v. Johnson (5th Cir. 1983) 718 F.2d 1317, 1324 .) I would eschew such judicial rule-making until the need arises.

Accordingly, I concur in the judgment and join in parts I and II of the majority opinion but not in all of part III.

Lucas, J., concurred.