DECEMBER 2008 REVISIONS – FORECITE Critique And Comments*

FORECITE December 2008 CALCRIM Revisions

Please select the link below to download the December 2008 CALCRIM Revisions in its entirety.

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December 2008 CALCRIM Revisions
FORECITE Critique And Comments*

*The revisions were proposed October 2008 and approved at the December 2008 Judicial Council of California meeting. The report explaining the reasons for these changes may be found at:

http://www.courtinfo.ca.gov/jc/documents/reports/120908item5.pdf

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. 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

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 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 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.]

3. Review the FORECITE materials for the instructions given in your case for other potential appellate issues.

December 2008 CALCRIM Revisions

Deleted language is stricken; added language underlined and capitalized.

PRETRIAL

CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected)

POST-TRIAL: INTRODUCTORY

CC 200 Note-Taking

EVIDENCE

CC 358 Evidence of Defendant’s Statements

AIDING AND ABETTING

CC 420 Withdrawal From Conspiracy

HOMICIDE

CC 570 Voluntary Manslaughter: Heat of PassionCLesser Included Offense (PC 192(a))

CC 571 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC 192)

CC 593 Misdemeanor Vehicular Manslaughter (PC 192(c)(2))

CC 600 Attempted Murder (PC 21a, PC 663, PC 664)

CC 763 Death Penalty: Factors to ConsiderCNot Identified as Aggravating or Mitigating (PC 190.3)

ASSAULTIVE AND BATTERY CRIMES

CC 945 Battery Against Peace Officer (PC 242, PC 243(b), (c)(2))

SEX OFFENSES

CC 1162 Soliciting Lewd Conduct in Public (PC 647(a))

CRIMINAL STREET GANGS

CC 1400 Active Participation in Criminal Street Gang (PC 186.22(a))

CC 1401 Felony Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1)); PC 186.22(d)

THEFT AND EXTORTION

CC 1804 Theft by False Pretense (PC 484)

VEHICLE OFFENSES

CC 2100 Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (VC 23153(a))

CC 2240 Failure to Appear (VC 40508(a))

CONTROLLED SUBSTANCES

CC 2350 Sale, Furnishing, etc, of Marijuana (HS 11360(a))

CC 2351 Offering to Sell, Furnish, etc, Marijuana (HS 11360)

CC 2352 Possession for Sale of Marijuana (HS 11018, 11359)

WEAPONS

CC 2514 Possession of Firearm by Person Prohibited by Statute: Self-Defense

CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang (PC 12025(b)(3), 12031(a)(2)(C))

ENHANCEMENTS AND SENTENCING FACTORS

CC 3130 Personally Armed With Deadly Weapon (PC 12022.3)

CC 3131 Personally Armed With Firearm (PC 1203.06(b)(3), PC 12022(c), PC 12022.3(b))

CC 3161 Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed (PC 12022.7(b))

CC 3162 Great Bodily Injury: Age of Victim (PC 12022.7(c) & (d))

CC 3163 Great Bodily Injury: Domestic Violence (PC 12022.7(e))

CC 3221 Aggravated White Collar Crime (PC 186.11(a)(1))

DEFENSES AND INSANITY

CC 3406 Mistake of Fact

CC 3453 Extension of Commitment (PC 1026.5(b)(1))

CC 3456 New: Initial Commitment of Mentally Disordered Offender As Condition of Parole

CC 3457 New: Extension of Commitment as Mentally Disordered Offender

CC 3458 New: Extension of Commitment to Juvenile Authority Facility (WI 1800)

CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor

PRETRIAL

CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) Revised December 2008

INSTRUCTION REVISION: Added last paragraph as follows [added language is underlined]:

You must reach your verdict without any consideration of punishment.

BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:

Do not give the sentence that begins “Do not let bias,”instruct a jury in the penalty phase of a capital trial of a capital case that they cannot consider sympathy. (People v. Easley (1982) 34 Cal.3d 858, 875–880 [196 Cal.Rptr. 309, 671 P.2d 813].) Instead of this instruction, CALCRIM 761 is the proper introductory instruction for the penalty phase of a capital case.

AUTHORITY REVISION: Added reference to People v. Ibarra (2007) 156 CA4th 1174, 1182–1183 [instruction upheld].

POST-TRIAL: INTRODUCTORY

CC 200 Note-Taking Revised December 2008

BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows [added language is underlined; deleted language is stricken]:

Do not give the paragraph that begins “Do not let bias,” instruct a jury in the penalty phase of a capital trial of a capital case that they cannot consider sympathy. (People v. Easley (1982) 34 Cal.3d 858, 875–880 [196 Cal.Rptr. 309, 671 P.2d 813].) Instead of this instruction, CALCRIM 761 is the proper introductory instruction for the penalty phase of a capital case.

AUTHORITY REVISION: Added reference to People v. Ibarra (2007) 156 CA4th 1174 [instruction upheld].

EVIDENCE

CC 358 Evidence of Defendant’s Statements Revised December 2008

INSTRUCTION REVISION: Added last paragraph as follows [added language is underlined]:

You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] the statement[s].

[You must cConsider with caution evidence of a defendant’s oral statement unless it any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]

BENCH NOTES REVISION: Instructional Duty: Modified paragraphs 1 and 2 as follows [added language is underlined; deleted language is stricken]:

The court has a sua sponte duty to give the bracketed cautionary this instruction when there is for evidence of an out-of-court oral statements statement by the defendant. In addition, the court has a sua sponte duty to give the bracketed cautionary instruction when there is evidence of an incriminating out-of-court oral statement made by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 455–456 [99 Cal.Rptr. 313, 492 P.2d 1].) The only An exception to this is is that in the penalty phase of a capital trial; then, there is no sua sponte duty to instruct, although the bracketed paragraph should be given only if requested the defense requests it. (People v. Livaditis (1992) 2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831 P.2d 297].)

The court has a sua sponte duty to give this instruction when there is evidence that defendant made an admission or confession before trial. It need not be given when there is no evidence of an admission or confession made before or after the crime.

Modified 4th paragraph as follows:

When a defendant’s statement is an element of the crime verbal act, as in conspiracy or criminal threats (Pen. Code, § 422), this instruction does not apply. (People cases, this instruction applies. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 [249 Cal.Rptr. 71, 756 P.2d 795]; People v. Ramirez (1974) 40 Cal.App.3d 347, 352 [114 Cal.Rptr. 916]; see also, e.g., Peabody v. Phelps (1858) 9 Cal. 213, 229 [similar, in civil cases]; but see People v. Zichko (2004) 118 Cal.App.4th1055, 1057 [13 Cal.Rptr.3d 509] [no sua sponte duty to instruct with CALJIC 2.71 in criminal threat case because “truth” of substance of the threat was not relevant and instructing jury to view defendant’s statement with caution could suggest that exercise of “caution” supplanted need for finding guilt beyond a reasonable doubt].)

AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES

CC 420 Withdrawal From Conspiracy Revised December 2008

INSTRUCTION REVISION: Modified by deleted “alternatives” as follows [deleted language is stricken]:

[The defendant has the burden of proving by a preponderance of the evidence that (he/she) withdrew from the conspiracy [before an overt act was committed]. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

BENCH NOTES REVISION – Instructional Duty: Deleted 2nd paragraph as follows [deleted language is stricken]:

There is no authority as to whether the defense must prove withdrawal by a preponderance of the evidence or whether the prosecution must prove beyond a reasonable doubt that the defense is not established. The court must instruct as to which party bears the burden. (People v. Mower (2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) The committee has provided the court with both options. The committee recommends reviewing People v. Mower, supra, 28 Cal.4th at pp. 478–479, discussing affirmative defenses and burdens of proof generally.

HOMICIDE

CC 570 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (PC 192(a)) Revised December 2008

INSTRUCTION REVISION: Modified 5th paragraph, 2nd sentence, as follows [added language is underlined; deleted language is stricken]:

It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react, in the same situation andknowing the samefacts, would have reacted from passion rather than from judgment.

AUTHORITY REVISION: Added reference to People v. Najera (2006) 138 CA4th 212, 223 [“average person” need not have been provoked to kill, just to act Rashly and without deliberation].

CC 571 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (Pen. Code, § 192) Revised December 2008

AUTHORITY REVISION: Modified reference to People v. Vasquez as follows [added language is underlined; deleted language is stricken]:

• Imperfect Self-Defense Not Available if Defendant’s Conduct Creates Circumstances Where Victim Is May be Available When Defendant Set in Motion Chain of Events Leading to Victim’s Attack, but Not When Victim was Legally Justified in Resorting to Self Defense. People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179–1180 [39 Cal.Rptr.3d 433].

CC 593 Misdemeanor Vehicular Manslaughter—Ordinary Negligence (PC 192(c)(2)) Revised December 2008

TITLE REVISION: Modified as follows [added language is underlined; deleted language is stricken]:

Misdemeanor Vehicular Manslaughter—Ordinary Negligence Manslaughter

INSTRUCTION REVISION: Modified Elements as follows:

1. The defendant (drove a vehicle/operated a vessel);

21. While (driving that a vehicle/operating that a vessel), the defendant committed (a/an) (a misdemeanor[,]/ [or] an infraction[,]/ [or] an otherwise lawful act that might cause death);

3. The defendant committed the (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might cause death) with ordinary negligence);

AND

42. The defendant’s negligent conduct (misdemeanor[,]/ [or] infraction[,]/ [or] negligent act) was dangerous to human life under the circumstances of its commission;

AND

3. The (misdemeanor[,]/ [or] infraction[,]/ [or] negligent act)caused the death of another person.

Modified 9th paragraph as follows:

[The People [also] allege that the defendant committed the following otherwise lawful act[s] that might cause death with ordinary negligence:

CC 600 Attempted Murder (PC 21a, PC 663, PC 664) Revised December 2008

INSTRUCTION REVISION: Modified 5th, 3rd sentence, paragraph as follows [added language is underlined; deleted language is stricken]:

If you have a reasonable doubt whether the defendant intended to kill ________ <insert name of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill ________ <insert name of primary target alleged> by harming killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of ________ <insert name of victim charged in attempted murder count[s] on concurrent-intent theory>.]

BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows:

The penultimate second bracketed paragraph is provided for cases in which the prosecution theory is that the defendant created a “kill zone,” harboring the specific and concurrent intent to kill anyone others in the zone. (People v. Jomo K. Bland (2002) 28 Cal.4th 313, 331 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) “[T]he defendant may be convicted of the “The conclusion that transferred intent does not apply to attempted murders of any[one] within the kill zone, although on a concurrent, not transferred, intent theory.” (Id. at p. 331.) In such cases,

[t]he defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.

(Id. at p. 330, quoting Ford v. State (1993) 330 Md. 682, 717 [625 A.2d 984].) murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” (Id. at p. 329.)

CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (PC 190.3) Revised December 2008

INSTRUCTION REVISION: Modified 5th paragraph, factor (b) as follows [added language is underlined; deleted language is stricken]:

(b) Whether or not the defendant has engaged in violent criminal activity other than the crime[s] of which the defendant was convicted in this case. Violent criminal activity involves is criminal activity involving the unlawful use or,attempted to use of force or violence, or the direct or implied threat to use force or violence against a person. [The other violent criminal activity alleged in this case will be described in these instructions.]

AUTHORITY REVISION: Added reference to People v. Kirkpatrick (1994) 7 C4th 988, 1016 [threats of violence must be directed at persons].

ASSAULTIVE AND BATTERY CRIMES

CC 945 Battery Against Peace Officer (PC 242, PC 243(b), (c)(2)) Revised December 2008

TITLE REVISION: Modified title as follows [deleted language is stricken]:

Simple Battery Against Peace Officer (Pen. Code, §§ 242, 243(b), (c)(2))

INSTRUCTION REVISION: Modified Element 4 and added Element 5; added paragraph 4, 6 & 7 and brackets to paragraph 5 as follows [added language is underlined; deleted language is stricken]:

[AND

4. ________<insert offıcer’s name, excluding title> suffered injury as a result of the touching(;/.)]

[AND

45. The defendant did not act (in self-defense/ [or] in defense of someone else).]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The slightest touching can be enough to commit a battery 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.]

[An injury is any physical injury that requires professional medical treatment. The question whether an injury requires such treatment cannot be answered simply by deciding whether or not a person sought or received treatment. You may consider those facts, but you must decide this question based on the nature, extent, and seriousness of the injury itself.]

BENCH NOTES REVISION – Instructional Duty: Added reference to change in bracketed Element 4 to 5.

AUTHORITY REVISION: Added reference to People v. Longoria (1995) 34 CA4th 12, 17–18 [physical injury defined. PC 243(f)(5)].

SEX OFFENSES

CC 1162 Soliciting Lewd Conduct in Public (PC 647(a)) Revised December 2008

INSTRUCTION REVISION: Modified Element 6 as follows [added language is underlined; deleted language is stricken]:

6. The defendant knew or reasonably should have known that someone might was likely to be present who could be offended by the requested conduct(;/.)

AUTHORITY REVISION: Added reference to People v. Lake (2007) 156 CA4th Supp. 1 [likely defined].

CRIMINAL STREET GANGS

CC 1400 Active Participation in Criminal Street Gang (PC 186.22(a)) Revised December 2008

INSTRUCTION REVISION: Added 10th and 11th paragraphs:

[To decide whether the organization, association, or group has, as one of its primary activities, the commission of ________<insert felony or felonies from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)> please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

Added 15th and 16th paragraphs:

[To decide whether a member of the gang [or the defendant] committed ________<insert felony or felonies from Pen. Code, § 186.22(e)(1)–(33)> please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

Modified 22nd and 23rd paragraphs as follows [added language is underlined; deleted language is stricken]:

Felonious criminal conduct means committing or attempting to commit [any of] the following crime[s]: ________ <insert felony or felonies by gang members that the defendant is alleged to have furthered, assisted, or promoted> promoted or directly committed>.

[To decide whether a member of the gang [or the defendant] committed ________ <insert felony or felonies listed immediately above and crimes from Pen. Code, § 186.22(e)(1)–(33) inserted in definition of pattern of criminal gang activity> above>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

BENCH NOTES REVISION – Instructional Duty: Modified 4th and 5th paragraphs as follows:

In the definition of “felonious criminal conduct,” insert the felony or felonies the defendant allegedly aided and abetted. (See People v. Green (1991) 227 Cal.App.3d 692, 704 [278 Cal.Rptr. 140].) Note that a defendant’s misdemeanor conduct in the charged case, which is elevated to a felony by operation of Penal Code section 186.22(a), is not sufficient to satisfy the felonious criminal conduct requirement of an active gang participation offense charged under subdivision (a) of section 186.22 or of active gang participation charged as an element of felony firearm charges under sections 12025(b)(3) or 12031(a)(2)(C). People v. Lamas (2007) 42 Cal.4th 516, 524 [67 Cal.Rptr.3d 179, 169 P.3d 102].

The court should also give the appropriate instructions defining the elements of crimes inserted in list of alleged “primary activities,” or the the definition of “pattern of criminal gang activity” that have not been established by prior convictions or sustained juvenile petitions. The court should also give the appropriate instructions defining the elements ofall crimes inserted in the definition of “criminal street gang,” “pattern of criminal gang activity,” or “felonious criminal conduct.” On request, give the bracketed paragraph that begins with “The People do not need to prove that the defendant devoted all or a substantial part of . . . .” (See Pen. Code, § 186.22(i).)

Related Instructions: Modified as follows:

This instruction should be used when a defendant is charged with a violation of Penal Code section 186.22(a) as a substantive offense. If the defendant is charged with an enhancement under 186.22(b), use CALCRIM No. 1401, Felony or MisdemeanorCommitted for Benefit of Criminal Street Gang (Pen. Code, § 186.22(b)(1)(Felony) and § 186.22(d)(Felony or Misdemeanor)). For additional instructions relating to liability as an aider and abettor, see the Aiding and Abetting series (CALCRIM No. 400 et seq.).

CC 1401 Felony Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1)); PC 186.22(d) Revised December 2008

TITLE REVISION: Modified title as follows [added language is underlined; deleted language is stricken]:

Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code, § 186.22(b)(1)(Felony) and § 186.22(d)(Felony or Misdemeanor))

INSTRUCTION REVISION: Added 9th and 10th paragraph as follows:

[To decide whether the organization, association, or group has, as one of its primary activities, the commission of ________<insert felony or felonies from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)> please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

Added 12th and 13th paragraphs as follows:

BENCH NOTES REVISION – Instructional Duty: Modified 4th paragraph as follows:

The court should also give the appropriate instructions defining the elements of all crimes inserted in the list of alleged “primary activities,” or thedefinition of “criminal street gang” or “pattern of criminal gang activity” that have not been established by prior convictions or sustained juvenile petitions.

RELATED ISSUES REVISION: Modified 4th paragraph as follows:

Murder—Enhancements Under Penal Code section 186.22(b)(1) Do May Not Apply at Sentencing The enhancements provided by Penal Code section 186.22(b)(1) do not apply to crimes “punishable by imprisonment in the state prison for life . . .” (Pen. Code, § 186.22(b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004 [22 Cal.Rptr.3d 869, 103 P.3d 270].) Thus, the ten-year enhancement provided by Penal Code section 186.22(b)(1)(C) for a violent felony committed for the benefit of the street gang does may not apply to in some sentencing situations involving the crime of murder.

THEFT AND EXTORTION

CC 1804 Theft by False Pretense (PC 484) Revised December 2008

INSTRUCTION REVISION: Modified Elements as follows [added language is underlined; deleted language is stricken]:

2. The defendant did so intending to persuade the owner [or the owner’s agent] to let the defendant [or another person] take possession and ownership of the property;

AND

3. The owner [or the owner’s agent] let the defendant [or another person] take possession and ownership of the property because the owner [or the owner’s agent] relied on the representation or pretense;.

AND

4. When the defendant acted, (he/she) intended (to deprive the owner of the property permanently/ [or] to remove it from the owner’s [or owner’s agent’s] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property).

BENCH NOTES REVISION – Instructional Duty: Deleted 2nd paragraph:

To have the requisite intent for theft, the thief must either intend to deprive the owner permanently or to deprive the owner of a major portion of the property’s value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115 Cal.Rptr.2d 403, 38 P.3d 1].) Select the appropriate language in element 4.

AUTHORITY REVISION: Deleted reference to People v. Avery (2002) 27 C4th 49, 57–59 [intent to deprive owner of main value]. Added reference to Perry v. Superior Court of Los Angeles County (1962) 57 C2d 276, 282–283 [theft by false pretenses includes obtaining loan by false pretenses].

RELATED ISSUESREVISION – Added paragraphs 6-8 as follows:

Genuine Writings

A genuine writing that is falsely used is not a false token. (People v. Beilfuss (1943) 59 Cal.App.2d 83, 91 [138 P.2d 332] [valid check obtained by fraud not object of theft by false pretense].)

Implicit Misrepresentations

The misrepresentation does not have to be made in an express statement; it may be implied from behavior or other circumstances. (People v. Mace (1925) 71 Cal.App. 10, 21 [234 P. 841]; People v. Randono (1973) 32 Cal.App.3d 164, 174–175 [108 Cal.Rptr. 326] [analogizing to the law of implied contracts].)

Non-Performance of a Promise Is Insufficient to Prove a False Pretense The pretense may be made about a past or present fact or about a promise to do something in the future. (People v. Ashley (1954) 42 Cal.2d 246, 259–265 [267 P.2d 271].) If the pretense relates to future actions, evidence of nonperformance of the promise is not enough to establish the falsity of a promise. (People v. Fujita (1974) 43 Cal.App.3d 454, 469 [117 Cal.Rptr. 757].) The intent to defraud at the time the promise is made must be demonstrated. As the court in Ashley stated, “[w]hether the pretense is a false promise or a misrepresentation of fact, the defendant’s intent must be proved in both instances by something more than mere proof of non-performance or actual falsity.” (People v. Ashley, supra, 42 Cal.2d at p. 264 [court also stated that defendant is entitled to instruction on this point but did not characterize duty as sua sponte].) See the Related Issues section under CALCRIM No. 1800, Theft by Larceny.

VEHICLE OFFENSES

CC 2100 Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (VC 23153(a)) Revised December 2008

TITLE REVISION: Modified title as follows [added language is underlined; deleted language is stricken]:

Driving a Vehicle or Operating a VesselUnder theInfluence Causing Injury (Veh. Code, § 23153(a))

INSTRUCTION REVISION: Modified first paragraph as follows:

The defendant is charged [in Count ] with causing injury to another person while (driving a vehicle/operating a vessel)under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] [in violation of Vehicle Code section 23153(a)].

Modified Elements as follows:

1. The defendant (drove a vehicle vehicle/operated a vessel);

2. When (he/she) (drove a vehicle/operated a vessel), the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug];

3. While (driving a vehicle/operating a vessel) under the influence, the defendant also (committed an illegal act/ [or] neglected to perform a legal duty);

AND

4. The defendant’s (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person.

Modified 3rd paragraph as follows:

A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to (drive a vehicle vehicle/operate a vessel) with the caution of a sober person, using ordinary care, under similar circumstances.

Modified 5th paragraph as follows:

[A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to (drive a vehicle/operate a vessel) as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would (drive a vehicle/operate a vessel) under similar circumstances.]

Modified 10th paragraph as follows:

[The People [also] allege that the defendant failed to perform the following legal (duty/duties) while (driving the vehicle vehicle/operating the vessel): (the duty to exercise ordinary care at all times and to maintain proper control of the vehicle/(vehicle/vessel)/ _________ <insert other duty or duties alleged>).]

Modified last paragraph as follows:

[If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive (drive/operate a vessel).]

LESSER INCLUDED OFFENSES REVISION: Added reference to People v. Binkerd (2007) 155 CA4th 1143, 1148–1149 [driving under the influence causing injury is not a lesser included offense of vehicular manslaughter without gross negligence].

CC 2240 Failure to Appear (VC 40508(a)) Revised December 2008

INSTRUCTION REVISION: Modified Element 2 as follows [added language is underlined]:

2. In connection with that citation, the defendant (signed a written promise to appear (in court/[or] before a person authorized to receive a deposit of bail)/ [or] received a lawfully granted continuance of (his/her) promise to appear);

CONTROLLED SUBSTANCES

CC 2350 Sale, Furnishing, etc, of Marijuana (HS 11360(a)) Revised December 2008

BENCH NOTES REVISION – Instructional Duty: Added 4th paragraph as follows:

Until courts of review provide further clarification, the court will have to determine whether under the facts of a given case the compassionate use defense should apply pursuant to Health & Saf. Code, §§ 11362.765 and 11362.775.

AUTHORITY REVISION: Modified 8th paragraph as follows:

• Compassionate Use Not a Defense. Defense Generally. People v. Wright (2006) 40 Cal.4th 81 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th 747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104Cal.App.4th 1147, 1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].

RELATED ISSUES: Deleted “Related Issues” section as follows:

RELATED ISSUES

Medical Marijuana Not a Defense to Sales

The medical marijuana defense provided by Health and Safety Code section 11362.5 is not available to a charge of sales under Health and Safety Code section 11360. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].) The defense is not available even if the marijuana is provided to someone permitted to use marijuana for medical reasons (People v. Galambos, supra, 104 Cal.App.4th at pp. 1165–1167) or if the marijuana is provided free of charge (People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at p. 1389). Evidence of a compassionate use defense may be admissible if the defendant denies intent to sell and asserts such a defense to simple possession or cultivation. (See People v. Galambos, supra, 104 Cal.App.4th at p. 1165 [trial court properly instructed on medical marijuana defense to simple possession and cultivation for personal use].) There is no case law on whether compassionate use may be raised as a defense to “furnishing” or “administering” marijuana.

CC 2351 Offering to Sell, Furnish, etc, Marijuana (HS 11360) Revised December 2008

BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph. See CC 2350, above.

AUTHORITY REVISION: Modified 7th paragraph See CC 2350, above.

RELATED ISSUES: Deleted “Related Issues” section as follows:

RELATED ISSUES

Medical Marijuana Not a Defense to Sales or Offering to Sell

The medical marijuana defense provided by Health and Safety Code section 11362.5 is not available to a charge of sales or offering to sell under Health and Safety Code section 11360. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].) The defense is not available even if the marijuana is provided to someone permitted to use marijuana for medical reasons (People v. Galambos, supra, 104 Cal.App.4th at pp. 1165–1167) or if the marijuana is provided free of charge (People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at p. 1389). Evidence of a compassionate use defense may be admissible if the defendant denies intent to sell and asserts such a defense to simple possession or cultivation. (See People v. Galambos, supra, 104 Cal.App.4th at p. 1165 [trial court properly instructed on medical marijuana defense to simple possession and cultivation for personal use].) There is no case law on whether compassionate use may be raised as a defense to “furnishing” or “administering” marijuana.

CC 2352 Possession for Sale of Marijuana (HS 11018, 11359) Revised December 2008

BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph. See CC 2350, above.

AUTHORITY REVISION: Modified 7th paragraph See CC 2350, above.

RELATED ISSUES: Deleted “Related Issues” section as follows:

RELATED ISSUES

Medical Marijuana Not a Defense to Possession for Sale

The medical marijuana defense provided by Health and Safety Code section 11362.5 is not available to a charge of possession for sale under Health and Safety Code section 11359. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].) The defense is not available even if the marijuana is provided to someone permitted to use marijuana for medical reasons (People v. Galambos, supra, 104 Cal.App.4th at pp. 1165–1167) or if the marijuana is provided free of charge (People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at p. 1389). Evidence of a compassionate use defense may be admissible if the defendant denies intent to sell and asserts such a defense to simple possession or cultivation. (See People v. Galambos, supra, 104 Cal.App.4th at p. 1165 [trial court properly instructed on medical marijuana defense to simple possession and cultivation for personal use].)

WEAPONS

CC 2514 Possession of Firearm by Person Prohibited by Statute: Self-Defense Revised December 2008

BENCH NOTES REVISION – Instructional Duty: Deleted 2nd paragraph as follows:

If this instruction is given with other self-defense instructions, the court should delete from the other instructions any portion stating that the defendant need not retreat. (People v. King (1978) 22 Cal.3d 12, 24 [148 Cal.Rptr. 409, 582 P.2d 1000] [if defendant is a convicted felon, he or she is obliged to try to retreat before using a firearm in self-defense].)

AUTHORITY REVISION: Added reference to People v. Rhodes (2005) 129 CA4th 1339, 1343–1346 [duty to retreat limited to felon in possession cases].

CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang (PC 12025(b)(3), 12031(a)(2)(C)) Revised December 2008

INSTRUCTION REVISION: Added 7th and 8th paragraphs as follows:

[To decide whether the organization, association, or group has, as one of its primary activities, the commission of ________<insert felony or felonies from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

Added 10th and 11th paragraphs as follows:

[To decide whether a member of the gang [or the defendant] committed ________<insert felony or felonies from Pen. Code, § 186.22(e)(1)–(33)>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

BENCH NOTES REVISION – Instructional Duty: Added 8th paragraph as follows:

Note that a defendant’s misdemeanor conduct in the charged case, which is elevated to a felony by operation of Penal Code section 186.22(a), is not sufficient to satisfy the felonious criminal conduct requirement of an active gang participation offense charged under subdivision (a) of section 186.22 or of active gang participation charged as an element of felony firearm charges under sections 12025(b)(3) or 12031(a)(2)(C). People v. Lamas (2007) 42 Cal.4th 516, 524 [67 Cal.Rptr.3d 179, 169 P.3d 102].

Related Instructions: Modified reference to CALCRIM 1401 reflecting a change in instruction title.

ENHANCEMENTS AND SENTENCING FACTORS

CC 3130 Personally Armed With Deadly Weapon (PC 12022.3) Revised December 2008

INSTRUCTION REVISION: Modified 1st, 1st sentence, paragraph as follows [added language is underlined; deleted language is stricken]:

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][ or the lesser crime[s] of ________ <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant was personally armed with a deadly weapon during in the commission [or attempted commission] of that crime.

Modified Elements as follows:

1. Carries a deadly weapon [or has a deadly weapon available] for use in either offense or defense; in connection with the crime[s] charged;

AND

2. Knows that he or she is carrying the deadly weapon [or has it available].

BENCH NOTES REVISION – Instructional Duty: Modified 4th paragraph as follows:

If the case involves an issue of whether the defendant was armed “during“in the commission of” the offense, the court may give CALCRIM No. 3261, In During Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705];

People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)

AUTHORITY REVISION: Added reference to People v. Pitto (2008) 43 C4th 228, 236–240 [armed].

CC 3131 Personally Armed With Firearm (PC 1203.06(b)(3), PC 12022(c), PC 12022.3(b)) Revised December 2008

INSTRUCTION REVISION: Modified 1st, 1st sentence, paragraph as follows [added language is underlined; deleted language is stricken]:

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]] [or the lesser crime[s] of ________ <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant was personally armed with a firearm during in the commission [or attempted commission] of that crime.

Modified Elements as follows:

1. Carries a firearm or has a firearm available for use in either offense or defense in connection with the crime[s] charged;

AND

2. Knows that he or she is carrying the firearm or has it available for use.

BENCH NOTES REVISION – Instructional Duty: Modified 4th paragraph. See CC 3130, above.

AUTHORITY REVISION: Added reference to People v. Pitto (2008) 43 C4th 228, 236–240 [armed; facilitative nexus].

RELATED ISSUES – Defendant Not Present When Drugs and Weapon Found: Modified last paragraph of suggested special instruction as follows:

If you find beyond a reasonable doubt that the evidence supports these conclusions, you may but are not required to conclude that the defendant was personally armed with a firearm during in the commission [or attempted commission] of the _________ <insert name of alleged offense>] [or the lesser crime of _________ <insert name of alleged lesseroffense>].

Deleted the following: Definition of “during the commission of” See CALCRIM No. 3261.

CC 3161 Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed (PC 12022.7(b)) Revised December 2008

INSTRUCTION REVISION: Modified 1st, 1st sentence, paragraph as follows [added language is underlined]:

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][or the lesser crime[s] of ________ <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant personally inflicted great bodily injury that caused ________ <insert name of injured person> to become (comatose/ [or] permanently paralyzed).

Modified 2nd to last paragraph as follows [added language is underlined; deleted language is stricken]:

BENCH NOTES REVISION – Instructional Duty: Modified 5th paragraph as follows:

If the case involves an issue of whether the defendant inflicted the injury “during “inthe commission of” the offense, the court may give CALCRIM No. 3261, DuriIng Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)

CC 3162 Great Bodily Injury: Age of Victim (PC 12022.7(c) & (d)) Revised December 2008

INSTRUCTION REVISION: Modified 1st, 1st sentence, paragraph as follows [added language is underlined]:

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][or the lesser crime[s] of ________ <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant personally inflicted great bodily injury on someone who was (under the age of 5 years/70 years of age or older).

Modified 2nd to last paragraph. See CC 3161, above.

BENCH NOTES REVISION – Instructional Duty: Modified 7th paragraph. See CC 3161, above.

CC 3163 Great Bodily Injury: Domestic Violence (PC 12022.7(e)) Revised December 2008

INSTRUCTION REVISION: Modified 1st, 1st sentence, paragraph as follows [added language is underlined]:

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][or the lesser crime[s] of ________ <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant personally inflicted great bodily injury on ________ <insert name of injured person> during the commission [or attempted commission] of that crime, under circumstances involving domestic violence.

Modified 3rd to last paragraph. See CC 3161, above.

BENCH NOTES REVISION – Instructional Duty: Modified 5th paragraph. See CC 3161, above.

CC 3221 Aggravated White Collar Crime (PC 186.11(a)(1)) Revised December 2008

INSTRUCTION REVISION: Modified 1st, 1st sentence, paragraph as follows [added language is underlined; deleted language is stricken]:

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][or the lesser crimes[s] of ________ <insert lesser offense[s]>], you must then decide whether the People have proved the additional allegation that the defendant engaged in a pattern of related felony conduct that (involved the taking of/ [or] resulted in the loss by another person or entity of) more than $ ________ <insert amount alleged>.

Modified Element 4 as follows:

4. The pattern of related felony conduct (involved the taking of/ [or] resulted in the loss by another person or entity of) more than $ ________ <insert amount alleged>.

DEFENSES AND INSANITY

CC 3406 Mistake of Fact Revised December 2008

BENCH NOTES REVISION – Instructional Duty: Modified 5th paragraph as follows [added language is underlined; deleted language is stricken]:

If the intent mental state element at issue is either specific criminal intent or knowledge, do not use the bracketed language requiring the belief to bereasonable. (People v. Reyes (1997) 52 Cal.App.4th 975, 984 & fn. 6 [61 Cal.Rptr.2d 39]; People v. Russell (2006) 144 Cal.App.4th 1415, 1425–1426 [51 Cal.Rptr.3d 263].)

CC 3453 Extension of Commitment (PC 1026.5(b)(1)) Revised December 2008

INSTRUCTION REVISION: Changes in bracketing.

BENCH NOTES REVISION – Instructional Duty: Modified first paragraph as follows [added language is underlined]:

The court has a sua sponte duty to instruct on the standard for extending commitment, including the constitutional requirement that the person be found to have a disorder that seriously impairs the ability to control his or her dangerous behavior. (People v. Sudar (2007) 158 Cal.App.4th 655, 663 [70 Cal.Rptr.3d 190].).

Minor changes to 3rd paragraph. Deleted last paragraph as follows:

If the evidence raises a reasonable doubt about the serious impairment of the ability to control behavior, the court must instruct on that requirement using the optional bracketed element 2b. (See In re Howard N. (2005) 35 Cal.4th 117, 137–138] [Youth Authority extended detention under Welf. & Inst. Code, section 1800 reversed for failure to instruct on impaired ability to control behavior]; cf. People v. Williams (2003) 31 Cal.4th 757, 774–777] [jury instructed in the language of the SVPA would necessarily understand this requirement, and no further instruction is needed]).

AUTHORITY REVISION: Added reference to People v. Sudar (2007) 158 CA4th 655, 662–663 [70 Cal.Rptr.3d 190] [applying the principles of Kansas v. Crane and In re Howard N. re: serious difficulty controlling behavior].

CC 3456 Initial Commitment of Mentally Disordered Offender As Condition of Parole New December 2008

CC 3457 Extension of Commitment as Mentally Disordered Offender New December 2008

CC 3458 Extension of Commitment to Division of Juvenile Facilities (WI 1800) New December 2008

CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor Revised December 2008

INSTRUCTION REVISION: Added 3rd paragraph as follows [added language is underlined]:

[A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self defense arose.]

AUTHORITY REVISION: Added reference to People v. Ross (2007) 155 CA4th 1033, 1045 [definition of mutual combat].

Instructions which only include changes to Bench Notes, Authority, etc., but not to text of instruction include: CC 200 Duties of Judge and Jury; CC 571 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC192); CC 2350 Sale, Furnishing, etc., of Marijuana (HS 11360(a)); CC 2351 Offering to Sell, Furnish, etc., Marijuana (HS 11360); CC 2352 Possession for Sale of Marijuana (HS 11018, 11359)

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