FORECITE August 2012 CALCRIM Revisions
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August 2012 CALCRIM Revisions
FORECITE Critique And Comments*
33 instructions were included in the latest CALCRIM update. Of these, 32 were revised and one (2953) is newly drafted.
The report explaining the reasons for these changes [hereinafter “8/2012 Report”] may be found at:
I. Overview
The purpose of this work is twofold. First, to show and memorialize the specific revisions the CALCRIM Committee made to each of the revised instructions. (But see footnote 1, below.) Second, to provide commentary on selected revisions which alert practitioners to potential trial and/or appellate issues related to the revision.
II. Caveat
The FORECITE commentary is not intended to address every potential issue related to the instruction discussed. Counsel should independently review and research each instruction in light of the specific circumstances of the case in which it is used.
III. A Suggested Practice Strategy Re: Revised Instructions
A. Trial Counsel:
1. Consider whether or not to request the revised version of any instruction. Such a request could make it more difficult to raise any deficiency in the instruction on appeal. On the other hand, if the unrevised version is given at the DA’s request or sua sponte by the judge, any deficiency in that instruction may be reviewable on appeal even if you don’t object. (See FORECITE PG VI(A) Cognizability On Appeal Of Instructional Error: Failure To Object.)
2. Examine any downside to the revised version and consider requesting the prior version instead. (See, e.g., FORECITE F 220.2 Inst 3 [The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220].)
3. Review the entire instruction – including the revision – for any potential deficiencies or shortcomings in light of your particular facts.
4. Browse the FORECITE entries for the instruction at issue and make any objections or motions which may be warranted based on those materials.
5. IMPORTANT: Do all of the above BEFORE trial.
Appellate Counsel:
1. Review the written and oral record of the jury instructions to determine whether or not the judge gave the revised version of any CALCRIM.
2. For any instruction given in your case that was subsequently revised consider whether the revision corrected a problem with the instruction which could be an appellate issue. [If so, you can then cite the revised CALCRIM as authority in support of a claim that the non-revised instruction was erroneous.] (See, e.g., People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80 [subsequent revision by CALCRIM Committee helped persuade reviewing court that the original version of the instruction was erroneous].) [Footnote 1]
Review the FORECITE materials for the instructions given in your case for other potential appellate issues.
FOOTNOTE:
1. “Furthermore, the People (and Moore) overlook the fact that CALCRIM No. 358 was revised in 2008, after Moore’s trial in this case, and that the cautionary language at the end of the instruction now states: ‘Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.’ This revision reinforces our conclusion that the cautionary language in the prior version of CALCRIM No. 358 that was given to the jury in this case was erroneous.” (People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80. ALERT: DO NOT USE THIS QUOTE IN ANY COURT (Calif. Rules of Court 8.1115(a).) Unpublished opinions are not ordinarily citable in court. (See FORECITE PG I(I).)
Table of Contents
August 2012 CALCRIM Revisions*
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (Revised August 2012)
CC 124 Separation Admonition (Revised August 2012)
CC 318 Prior Statements as Evidence (Revised August 2012)
CC 335 Accomplice Testimony: No Dispute Whether Witness Is Accomplice (Revised August 2012)
CC 336 In-Custody Informant (Revised August 2012)
CC 350 Character of Defendant (Revised August 2012)
CC 401 Aiding and Abetting: Intended Crimes (Revised August 2012)
CC 505 Justifiable Homicide: Self-Defense or Defense of Another (Revised August 2012)
CC 507 Justifiable Homicide: By Public Officer (Revised August 2012)
CC 510 Excusable Homicide: Accident (Revised August 2012)
CC 571 Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another – Lesser Included Offense (PC 192) (Revised August 2012)
CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (PC 273.5(a)) (Revised August 2012)
CC 890 Assault With Intent to Commit Specified Crimes [While Committing First Degree Burglary] (PC 220(a), (b)) (Revised August 2012)
CC 965 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised August 2012)
CC 1002 Rape of Intoxicated Woman or Spouse (PC 261(a)(3), 262(a)(2)) (Revised August 2012)
CC 1003 Rape of Unconscious Woman or Spouse (PC 261(a)(4), 262(a)(3)) (Revised August 2012)
CC 1004 Rape of a Disabled Woman (PC 261(a)(1)) (Revised August 2012)
CC 1019 Oral Copulation of a Disabled Person (PC 288a(a), (g)) (Revised August 2012)
CC 1112 Lewd or Lascivious Act: Child 14 or 15 Years (PC 288(c)(1)) (Revised August 2012)
CC 1151 Pandering (PC 266i) (Revised August 2012)
CC 1400 Active Participation in Criminal Street Gang (PC 186.22(a)) (Revised August 2012)
CC 1401 Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1) (Felony) and PC 186.22(d) (Felony or Misdemeanor)) (Revised August 2012)
CC 2040 Unauthorized Use of Personal Identifying Information (PC 530.5(a)) (Revised August 2012)
CC 2624 Threatening a Witness After Testimony or Information Given (PC 140(a)) (Revised August 2012)
CC 2843 Determining Income: Bank Deposits Method (Revised August 2012)
CC 2953 Cruelty to Animals (PC 597(a)) (New Instruction)
CC 3404 Accident (PC 195) (Revised August 2012)
CC 3426 Voluntary Intoxication (PC 22) (Revised August 2012)
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) (Revised August 2012)
CC 3517 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide) (Revised August 2012)
CC 3518 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Is Given Only One Not Guilty Verdict Form for Each Count (Non-Homicide) (Revised August 2012)
CC 3519 Deliberations and Completion of Verdict Forms: Lesser Offenses – For Use When Lesser Included Offenses and Greater Crimes Are Separately Charged (Non-Homicide) (Revised August 2012)
CC 3590 Final Instruction on Discharge of Jury (New Instruction August 2012)
PRETRIAL
CC 101 Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected) (Revised August 2012)
INSTRUCTION REVISION: Modified first paragraph, second sentence as follows [added language is underlined]:
It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant and the parties will not have had the opportunity to examine and respond to it.
FORECITE Commentary: 1. Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
2. See FORECITE F 101.4 Inst 2 [It Is Unnecessary And Potentially Harmful To Attempt To Explain Why Judge’s Admonition Should Be Obeyed].
3. Improvements to the language suggested in the comments will be considered at the next CALCRIM Committee meeting. (See FORECITE F 101 Note 6.)
CC 124 Separation Admonition (Revised August 2012)
INSTRUCTION REVISION: Modified 2nd paragraph to add 3rd paragraph as follows [added language is underlined; deleted language is stricken]:
- Remember, do not talk about the case or about any of the people or any subject involved in it with anyone, including the other jurors. Do not do research, share information, or talk to each other or to anyone else about the facts of the case or anything else connected with the trial, and do not use any form of electronic or wireless communication to do any of those things, either.
Do not make up your mind or express any opinion about the verdict case or any issue connected with the trial until after you have discussed the case with the other jurors during deliberations.
BENCH NOTES REVISION – Instructional Duty: Added last two paragraphs as follows [added language is underlined]:
Pen. Code, § 1122(b). Adjournment means continuing proceedings to another court day, not every time the court calls a recess. People v. Heishman (1988) 45 Cal.3d 147, 174 [246 Cal.Rptr. 673, 691, 753 P.2d 629], citing People v. Moore (1971) 15 Cal.App.3d 851, 852–853 [93 Cal.Rptr. 447].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
2. At its next meeting the CALCRIM Committee will consider alternative language regarding electronic and wireless communication. See FORECITE Commentary to CC 101, above.
3. In a death penalty case the standard admonition should be modified for use after the guilt verdict. (See FORECITE F 124 Inst 2.)
EVIDENCE
CC 318 Single Witness’s Testimony (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Tuggles (2009) 179 CA4th 339, 363-367 [instruction upheld].
CC 335 Justifiable Homicide: Self-Defense or Defense of Another (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Tuggles (2009) 179 CA4th 339, 363-367 [instruction upheld].
,/hr>
CC 336 In-Custody Informant (Revised August 2012)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
TView the (statement/[or] testimony) of an in-custody informant should be viewed against the defendant with caution and close scrutiny. In evaluating such (a statement/[or] testimony), you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such (a statement/[or] testimony), but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.
<Give the following paragraph if the issue of whether a witness was an in-custody informant is in dispute>
[An in-custody informant is someone [, other than (a/an) (codefendant[,]/[or] percipient witness[,]/[or] accomplice[,]/[or] coconspirator,)] whose (statement/[or] testimony) is based on [a] statement[s] the defendant allegedly made while both the defendant and the informant were held within a correctional institution.] If you decide that a (declarant/[or] witness) was not an in-custody informant, then you should evaluate his or her (statement/ [or] testimony) as you would that of any other witness.]
<Give the first bracketed phrase if the issue of whether a witness was an in-custody informant is in dispute>
[If you decide that a (declarant/[or] witness) was an in-custody informant, then] (Y/)you may not convict the defendant of _________ based on the (statement/[or] testimony) of that in-custody informant alone. [Nor may you find a special circumstance true/ [or] use evidence in aggravation based on the (statement/ [or] testimony) of that in-custody informant alone.]
You may use the (statement/[or] testimony) of an in-custody informant only if:
1. The (statement/[or] testimony) is supported by other evidence that you believe;
2. That supporting evidence is independent of the (statement/[or] testimony);
AND
3. That supporting evidence connects the defendant to the commission of the crime[s] [or to the special circumstance/[or] to evidence in aggravation]. The supporting evidence is not sufficient if it merely shows that the charged crime was committed [or proves the existence of a special circumstance/[or] evidence in aggravation].
[Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.]
[Do not use the (statement/[or] testimony) of an in-custody informant to support the (statement/[or] testimony) of another in-custody informant unless you are convinced that ________ has proven it is more likely than not that the in-custody informant has not communicated with another in-custody informant on the subject of the testimony.
[A percipient witness is someone who personally perceived the matter that he or she testified about.
________ <Insert the name of the in-custody informant if his or her statue is not in dispute>
[ ________ is an in-custody informant.]
[ ________ is a correctional institution.]
BENCH NOTES REVISION – Instructional Duty:
Added last two paragraphs as follows [added language is underlined]:
The committee awaits guidance from courts of review on the issue of whether this instruction applies to witnesses other than those called by the People. Until the issue is resolved, the committee provides this version consistent with the language of the new statute.
If the court concludes that the corroboration requirement applies to an out-of-court statement, use the word “statement” throughout the instruction. (See discussion in Related Issues section to CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice.)
AUTHORITY REVISION: Added reference to PC 1111.5 [instructional duty].
FORECITE Commentary: 1. Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
2. See FORECITE F 336 et al.
CC 350 Character of Defendant (Revised August 2012)
INSTRUCTION REVISION: Modified first paragraph and first sentence of the 3rd paragraph, and deleted 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
You have heard character testimony that the defendant (is a ________ <insert character trait> relevant to crime[s] committed> person/[or] has a good reputation for ________ <insert character trait> relevant to crime[s] committed> in the community where (he/she) lives or works).
You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt.
Evidence of the defendant’s character for ________ <insert character trait> relevant to crime[s] committed> can by itself create a reasonable doubt [whether the defendant committed _______ ].
Added 4th paragraph as follows:
You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt.
AUTHORITY REVISION: Added reference to People v. Taylor (1986) 180 CA3d 622, 629 [character evidence must be relevant to offense charged].
FORECITE Commentary: 1. Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
2. See FORECITE F 350 Inst 1 [Jurors Must Consider Good Character Evidence].
3. See FORECITE F 350 Inst 2 [Use Of The Phrase “Create A Reasonable Doubt” Erroneously Implies A Defense Burden].
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 401 Aiding and Abetting: Intended Crimes (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Battle (2011) 198 CA4th 50, 67 [instruction correct re: withdrawal defense].
HOMICIDE
CC 505 Justifiable Homicide: Self-Defense or Defense of Another (Revised August 2012)
BENCH NOTES REVISION: – Related Instructions: Modified title of CC 571 as follows [added language is underlined]:
CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another—Lesser Included Offense.
AUTHORITY REVISION: Added reference to People v. Lopez (2011) 199 CA4th 1297, 1306 [instruction upheld].
CC 507 Justifiable Homicide: By Public Officer (Revised August 2012)
AUTHORITY REVISION: Added reference to Kortum v. Alkire (1977) 69 CA3d 325, 332–333 [felony must pose threat of death or great bodily injury].
CC 510 Excusable Homicide: Accident (Revised August 2012)
BENCH NOTE REVISION: – Instructional Duty: Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
The trial court has a no sua sponte duty to instruct on lawful acts that excuse homicide when there is evidence supporting that defense. (See People v. Hampton (1929) 96 Cal.App. 157, 159–160 [273 P. 854] [court erred in refusing defendant’s requested instruction]; People v. Slater (1943) 60 Cal.App.2d 358, 369 [140 P.2d 846]; People v. Bloyd (1987) 43 Cal.3d 333, 353–354 [233 Cal.Rptr. 368, 729 P.2d 802] [instruction not required when defendant argued the victim killed herself by accident. (People v. Anderson (2011) 51 CA4th 989, 997–998 [125 Cal.Rptr.3d 408, 252 P.3d 968].)
CC 571 Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another – Lesser Included Offense (PC 192) (Revised August 2012)
TITLE REVISION: Modified to add “or Imperfect Defense of Another.”
AUTHORITY REVISION: – Imperfect Defense of Others: Deleted reference to People v. Michaels (2002) 28 CA4th 486, 529–531. Added reference to People v. Randle (2005) 35 CA4th 987, 995–1000, overruled on another ground in People v. Chun(2009) 45 CA4th 1172.
Added reference to People v. Lopez (2011) 199 CA4th 1297, 1306 [instruction upheld].
ASSAULTIVE AND BATTERY CRIMES
CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (PC 273.5(a)) (Revised August 2012)
BENCH NOTES REVISION: – Instructional Duty: Added last paragraph as follows [added language is underlined]:
If there is evidence that the traumatic condition resulted from strangulation or suffocation, consider instructing according to the special definition provided in Pen. Code, § 273.5(c).
AUTHORITY REVISION: Added reference to PC 273.5(c) [strangulation and suffocation].
CC 890 Assault With Intent to Commit Specified Crimes [While Committing First Degree Burglary] (PC 220(a), (b)) (Revised August 2012)
LESSER INCLUDED OFFENSES REVISION: Added 2nd paragraph as follows [added language is underlined]:
Both assault with intent to commit rape and first degree burglary are lesser included offenses of assault with intent to commit rape during first degree burglary (Pen. Code, § 220(b); (People v. Dyser (2012) 202 CA4th 1015, 1021 [135 Cal.Rptr.3d 891].)
CC 965 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Manzo (2012) 53 CA4th 880, 889–890 [offense of discharging firearm at occupied vehicle can be committed when gun is inside vehicle].
SEX OFFENSES
CC 1002 Rape of Intoxicated Woman or Spouse (PC 261(a)(3), 262(a)(2)) (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Smith (2010) 191 CA4th 199, 204-205 [instruction upheld].
LESSER INCLUDED OFFENSES REVISION: Added the following references [added language is underlined]:
- Assault. Pen. Code, § 240.
- Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 CA3d 1624, 1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer (2001) 24 CA4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see People v. Marshall (1997) 15 CA4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262] [battery not a lesser included offense of attempted rape].
CC 1003 Rape of Unconscious Woman or Spouse (PC 261(a)(4), 262(a)(3)) (Revised August 2012)
AUTHORITY REVISION: See CC 1002, above.
CC 1004 Rape of a Disabled Woman (PC 261(a)(1)) (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Smith (2010) 191 CA4th 199, 204-205 [instruction upheld].
LESSER INCLUDED OFFENSES REVISION: Added the following references [added language is underlined]:
- Assault. Pen. Code, § 240.
- Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 CA3d 1624, 1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer (2001) 24 CA4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see People v. Marshall (1997) 15 CA4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262] [battery not a lesser included offense of attempted rape].
- This Instruction Completely Explains Inability to Give Legal Consent. People v. Miranda (2011) 199 CA4th 1403, 1419, fn. 13 [132 Cal.Rptr.3d 315] [in dicta].
CC 1019 Oral Copulation of a Disabled Person (PC 288a(a), (g)) (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Miranda (2011) 199 CA4th 1403, 1419, fn. 13 [instruction completely explains inability to give legal consent].
CC 1112 Lewd or Lascivious Act: Child 14 or 15 Years (PC 288(c)(1)) (Revised August 2012)
INSTRUCTION REVISION: Added 4th paragraph as follows [added language is underlined]:
The touching need not be done in a lewd or sexual manner.
FORECITE Commentary: Instructing the jurors as to specific facts which need not be proved by the prosecutor is improperly argumentative and duplicative. (See FORECITE F 416.3 Inst 4.)
CC 1151 Pandering (PC 266i) (Revised August 2012)
INSTRUCTION REVISION: Modified the paragraph defining “prostitute” and added “pandering” as follows [added language is underlined; deleted language is stricken]:
A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money [or other compensation]. Pandering requires that an intended act of prostitution be with someone other than the defendant another person in exchange for money [or other compensation].
FORECITE Commentary: This version corrects the nonsensical version which appeared in the February 2012 revision:
A prostitute is a person who engages in sexual intercourse or any lewd act with someone other than the defendant another person in exchange for money [or other compensation].
CRIMINAL STREET GANGS
CC 1400 Active Participation in Criminal Street Gang (PC 186.22(a)) (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Albillar (2010) 51 CA4th 47, 54–59 [felonious criminal conduct defined] and People v. Garcia (2007) 153 CA4th 1499, 1509 [temporal connection between active participation and felonious criminal conduct].
COMMENTARY REVISION: Added the last sentence as follows:
The “felonious criminal conduct” need not be gang-related. (People v. Albillar (2010) 51 CA4th 47, 54–59 [119 Cal.Rptr.3d 415,244 P.3d 1062].)
CC 1401 Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1) (Felony) and PC 186.22(d) (Felony or Misdemeanor)) (Revised August 2012)
AUTHORITY REVISION: Added reference to People v. Albillar (2010) 51 CA4th 47, 59–64 [“for the benefit of, at the direction of, or in association with any criminal street gang” defined] and People v. Albillar (2010) 51 CA4th 47, 64–68 [specific intent defined].
CRIMINAL WRITINGS AND FRAUD
CC 2040 Insurance Fraud: Health-Care Claims-Total Value (PC 550(c)(2)) (Revised August 2012)
INSTRUCTION REVISION: Modified 6th paragraph as follows [added language is underlined; deleted language is stricken]:
An unlawful purpose includes unlawfully (obtaining/[or] attempting to obtain) (credit[,]/[or] goods[,]/[or] services[,]/[or] real property[,]/[or] medical information) in the name of the/[[or] ________ <insert other person unlawful purpose>] without the consent of that the other person [[or]________ <insert other unlawful purpose>].
FORECITE Commentary – Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CRIMES AGAINST GOVERNMENT
CC 2624 Threatening a Witness After Testimony or Information Given (PC 140(a)) (Revised August 2012)
INSTRUCTION REVISION: Added brackets around the “AND” between elements; added Elements 3 and 4 as follows [added language is underlined]:
<Give the following language if the violation is based on a threat>
[AND]
[3. A reasonable listener in a similar situation with similar knowledge would interpret the threat, in light of the context and surrounding circumstances, as a serious expression of intent to commit an act of unlawful force or violence rather than just an expression of jest or frustration(;/.)]
[OR]
[(3./4.) A reasonable listener in a similar situation with similar knowledge would interpret the threat, in light of the context and surrounding circumstances, as a serious expression of intent to commit an act of unlawful taking, damage or destruction of property rather than just an expression of jest or frustration.]
AUTHORITY REVISION: Added reference to People v. Lowery (2011) 52 CA4th 419, 427 [reasonable listener standard].
FORECITE Commentary – Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
TAX CRIMES
CC 2843 Determining Income: Bank Deposits Method (Revised August 2012)
INSTRUCTION REVISION: Modified 5th paragraph, 3rd sentence as follows [deleted language is stricken]:
Cash on hand is cash that the defendant had in (his/her) possession at the starting point that was not in a bank account.
Changed “cash-on-hand” to “cash on hand.”
FORECITE Commentary – Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2953 Cruelty to Animals (PC 597(a)) (New Instruction)
DEFENSES AND INSANITY
CC 3404 Accident (PC 195) (Revised August 2012)
BENCH NOTES REVISION – Instructional Duty: Modified first three paragraphs as follows [added language is underlined; deleted language is stricken]:
The court must instruct on a defense when the defendant requests it and there is substantial evidence supporting the defense. The court has a no sua sponte duty to instruct on a defense if there is substantial evidence supporting it and either the defendant is relying on it or it is not inconsistent with the defendant’s theory of the case.
When the court concludes that the defense is supported by substantial evidence and is inconsistent with the defendant’s theory of the case, however, it should ascertain whether defendant wishes instruction on this alternate theory. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111]; People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983 [38 Cal.Rptr.3d 624, 127 P.3d 40 accident. (People v. Anderson (2011) 51 CA4th 989, 997–998 [125 Cal.Rptr.3d 408].)>
CC 3426 Voluntary Intoxication (PC 22) (Revised August 2012)
BENCH NOTES REVISION – Instructional Duty: Added last paragraph as follows [added language is underlined]:
The court may need to modify this instruction if given with CALCRIM No. 362, Consciousness of Guilt. (People v. Wiidanen (2011) 201 CA4th 526, 528, 533 [135 Cal.Rptr.3d 736].)
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) (Revised August 2012)
INSTRUCTION REVISION: Added 4th paragraph as follows [added language is underlined]:
The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.]
FORECITE Commentary: 1. Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
2. Instructing the jurors as to specific facts which need not be proved by the prosecutor is improperly argumentative and duplicative. (See FORECITE F 416.3 Inst 4.)
POST-TRIAL: CONCLUDING
CC 3517 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide) (Revised August 2012)
INSTRUCTION REVISION: Modified all numbered items to delete People’s burden is “beyond a reasonable doubt.”
In section re: jury has a combined verdict form for both greater and lesser offenses modified Item 4 and 5 as follows:
4. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of either the greater or the lesser crime, (write “not guilty” in the blank/circle the words “not guilty”/check the box for “not guilty”) for both the greater crime and the lesser crime.
5. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, but all of you cannot agree on a verdict for the lesser crime, (write “not guilty” in the blank/circle the words “not guilty”/check the box for “not guilty”) for the both the greater crime and the lesser crime.
5. If all of you agree that the People have not proved that the defendant is guilty of the greater crime, but all of you cannot agree on a verdict for the lesser crime, (write “not guilty” in the blank/circle the words “not guilty”/check the box for “not guilty”) for the greater crime, then sign, date, and return the form. Do not (write/circle/check) anything for the lesser crime, and inform me only that you cannot reach an agreement on that crime.]
Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
FORECITE Commentary: 1. Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
2. See comments to proposed changes regarding the unnecessary removal of the beyond reasonable doubt language.
3. See FORECITE F 3517 et al.
CC 3518 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Is Given Only One Not Guilty Verdict Form for Each Count (Non-Homicide) (Revised August 2012)
INSTRUCTION REVISION: Modified all numbered items to delete People’s burden is “beyond a reasonable doubt.”
Added 3rd to last paragraph as follows [added language is underlined]:
Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
FORECITE Commentary: See FORECITE Commentary to CC 3517.
CC 3519 Deliberations and Completion of Verdict Forms: Lesser Offenses – For Use When Lesser Included Offenses and Greater Crimes Are Separately Charged (Non-Homicide) (New Instruction August 2012)
INSTRUCTION REVISION: Modified all numbered items to delete People’s burden is “beyond a reasonable doubt.”
Added 3rd to last paragraph as follows [added language is underlined]:
Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
FORECITE Commentary: See FORECITE Commentary to CC 3517.
CC 3590 Final Instruction on Discharge of Jury (New Instruction August 2012)
INSTRUCTION REVISION: Modified 6th and 7th paragraphs as follows [added language is underlined; deleted language is stricken]:
Please tell me immediately report to the court any if anyone unreasonable unreasonably contacts you made without your consent, by the lawyers in this case, their representatives, or the defendant[s].
A lawyer, representative, or defendant. Anyone who violates these rules violates is violating a court order and may be fined.
FORECITE Commentary – Appellate Update: This revision correct an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
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