CALCRIM Revisions
May 15th, 2023

Effective March 24, 2023, the Judicial Council ordered the following changes to the CALCRIM instructions:   1. Adoption of new CALCRIM Nos. 352, 3224, 3225, 3226, 3227, 3228, 3229, 3230, 3231, 3232, 3233, and 3234 Re: non-capital aggravating factors;   2. Revisions to CALCRIM Nos. 301, 335, 336, 350, 358, 375, 418, 540A, 730, 736, […]




Intent Plus Aiding Required For SB 1437; But Only The Underlying Felony Has To Be Aided
March 28th, 2023

“Senate Bill 1437’s author described the purpose of the new law as “‘restor[ing] proportional responsibility in the application of California’s murder statute [by] reserving the harshest punishments for those who intentionally planned or actually committed the killing.’” (Assem. Com. on Public Safety, June 26, 2018, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.), at […]


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Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
March 21st, 2023

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice.   These defects in the CALCRIM instructions […]


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Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”
March 14th, 2023

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial    statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.   After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information […]


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Dog Tracking: Cautionary Instruction Not Required Sua Sponte
February 20th, 2023

The CALCRIM Bench Notes to CC 374 state that the court “has a sua sponte duty to instruct on tracking dogs whenever they are used to prove the identity of a defendant. [Citation.]”   But see, People v. Westerfield (2019) 6 Cal.5th 632, 707 fn. 8:   [W]e have previously recognized that “it is more […]


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CALCRIM Erroneously Fails To Require That The Defendant “Personally Killed” The Victim
February 13th, 2023

The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:   Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission […]


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Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM
January 24th, 2023

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice. These defects in the CALCRIM instructions were […]


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CALCRIM Erroneously Fails To Require That The Defendant “Personally Killed” The Victim
January 16th, 2023

The CALCRIM introduction to its felony murder instructions summarizes the impact of SB 1437 as follows:   Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission […]


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Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”
January 13th, 2023

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.   After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from […]


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Dog Tracking: Cautionary Instruction Not Required Sua Sponte
January 6th, 2023

The CALCRIM Bench Notes to CC 374 state that the court “has a sua sponte duty to instruct on tracking dogs whenever they are used to prove the identity of a defendant. [Citation.]”   But see, People v. Westerfield (2019) 6 Cal.5th 632, 707 fn. 8:   [W]e have previously recognized that “it is more […]


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