ORECITE Fall 2006 CALCRIM Revisions and Commentary
Revised Instructions and FORECITE Commentary
Please select the link below to download the Fall 2006 CALCRIM Revisions
and FORECITE Commentary in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
Fall* 2006 CALCRIM Revisions
FORECITE Critique And Comments
*The revisions were approved at the December 2006 Judicial Council of California meeting.
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.
IV. “Nonsubstantive” Changes
In addition to the revised instructions identified by the Judicial Council and discussed below, “nonsubstantive grammatical and typographical” changes were made to 244 other instructions without specific Judicial Council Approval. See http://www.courtinfo.ca.gov/jc/documents/reports/102006ItemB.pdf
Table of Contents
Fall 2006 CALCRIM Revisions
Deleted language is stricken; added language underlined and capitalized.
PRETRIAL
CC 106 Jurors Asking Questions
POST-TRIAL INTRODUCTORY
CC 220 Reasonable Doubt
CC 225 Circumstantial Evidence: Intent or Mental State
CC 251 Union of Act and Intent: Specific Intent or Mental State
EVIDENCE
CC 359 Corpus Delicti: Independent Evidence of a Charged Crime
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 415 Conspiracy
CC 416 Evidence of Uncharged Conspiracy
HOMICIDE
CC 521 Murder: Degrees
CC 563 Conspiracy to Commit Murder
ATTEMPTED MURDER
CC 602 Attempted Murder: Peace Officer or Firefighter
HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
CC 730 Special Circumstances: Murder in Commission of Felony, Pen. Code, §190.2(a)(17) fighter
CC 736 Special Circumstances: Killing by Street Gang Member, Pen. Code, §190.2(a)(22)
CC 763 Death Penalty: Factors to ConsiderC Not Identified as Aggravating or Mitigating
ASSAULTIVE AND BATTERY CRIMES
CC 801 Mayhem
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death
CC 823 Child Abuse
CC 852 Evidence of Uncharged Domestic Violence
CC 945 Simple Battery Against Peace Officer
SEX OFFENSES
CC 1015 Oral Copulation by Force, Fear, or Threats
CC 1030 Sodomy by Force, Fear, or Threats
CC 1162 Soliciting Lewd Conduct in Public
CC 1170 Failure to Register as Sex Offender
CRIMINAL THREATS AND HATE CRIMES
CC 1300 Criminal Threat
CC 1400 Active Participation in Criminal Street Gang
CC 1401 Felony Committed for Benefit of Criminal Street Gang
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1750 Receiving Stolen Property
THEFT AND EXTORTION
CC 1804 Theft by False Pretense
CRIMINAL WRITINGS AND FRAUD
CC 2040 Unauthorized Use of Personal Identifying Information
VEHICLE OFFENSES
CC 2101 Driving With 0.08 Percent Blood Alcohol Causing Injury
CC 2111 Driving With 0.08 Percent Blood Alcohol
CC 2140 Failure to Perform Duty Following Accident: Death or InjuryC Defendant Driver
CC 2180 Evading Peace Officer: Death or Serious Bodily Injury
CC 2181 Evading Peace Officer: Reckless Driving
CC 2182 Evading Peace Officer: Misdemeanor
CONTROLLED SUBSTANCES
CC 2303 Possession of Controlled Substance While Armed With Firearm
CC 2304 Simple Possession of Controlled Substance
CC 2400 Using or Being Under the Influence of Controlled Substance
WEAPONS
CC 2500 Illegal Possession, etc., of Weapon
CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang
CC 2560 Possession, etc., of Assault Weapon or. 50 BMG Rifle
CC 2562 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
CRIMES AGAINST GOVERNMENT
CC 2655 Causing Death or Serious Bodily Injury While Resisting Peace Officer
TAX CRIMES
CC 2800 Failure to File Tax Return
CC 2810 False Tax Return
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2962 Selling or Furnishing Alcoholic Beverage to Person Under 21
CC 2963 Permitting Person Under 21 to Consume Alcoholic Beverage
CC 2964 Purchasing Alcoholic Beverage for Person Under 21: Resulting in Death or Great
CC 2982 Persuading, Luring, or Transporting a Minor Under 14 Years of Age
ENHANCEMENTS AND SENTENCING FACTORS
CC 3115 Armed With Firearm, Pen. Code, §12022(a)(1)
CC 3116 Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle, Pen. Code, §12022(a)(2)
CC 3117 Armed With Firearm: Knowledge That Coparticipant Armed, Pen. Code, §12022(d)
CC 3261 During Commission of Felony: DefinedC Escape Rule
DEFENSES AND INSANITY
CC 3454 Commitment as Sexually Violent Predator
POST-TRIAL: CONCLUDING
CC 3517 Deliberations and Completion of Verdict Forms: Lesser Offenses or DegreesCWithout Stone Instruction (Non-Homicide)
CC 3518 Deliberations and Completion of Verdict Forms: Lesser Offenses or DegreesCWith Stone Instruction (Non-Homicide)
PRETRIAL
CC 106 Jurors Asking Questions
INSTRUCTION REVISION: Moved 4th sentence to third sentence: “Do not feel slighted or disappointed if your question is not asked.”
POST-TRIAL INTRODUCTORY
CC 220 Reasonable Doubt
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] A DEFENDANT GUILTY beyond a reasonable doubt. 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: The August 2006 version—which deleted the “each element” construction of the presumption of innocence—is deficient under California law and the federal constitution. (See FORECITE F 220.2 Inst 3.) For additional issues re: CALCRIM 220 see FORECITE F 220.
CC 225 Circumstantial Evidence: Intent or Mental State
INSTRUCTION REVISION: Modified first paragraph as follows:
The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/[AND/or] mental state). The instructions for each crime explain the (intent/[AND/or] mental state) required.
Modified 2nd paragraph as follows:
A[n] (intent/ [AND/or] mental state) may be proved by circumstantial evidence.
Modified 3rd paragraph, second sentence as follows, and changed remaining references to intent and mental state in the same manner:
Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [AND/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [AND/or] mental state).
*FORECITE COMMENTARY: The January 2006 version was deficient for failure to assure that the prosecution proved both the required intent and mental states for the charged offense. This could be an appellate issue. (See FORECITE F 2.02 n 4; F 4.21 n4.) For additional issues re: CALCRIM 225 see FORECITE F 225.
CC 251 Union of Act and Intent: Specific Intent or Mental State
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
In order to be guilty of the crime[s] of ________ <insert name[s] of alleged offense[s]> [or the allegation[s] of ________ <insert name[s] of enhancement[s]>], a person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/ [AND/or] mental state). The act and the (intent/ [AND/or] mental state) required are explained in the instruction for every crime [or allegation].
*FORECITE COMMENTARY: See CALCRIM 225, above.
EVIDENCE
CC 359 Corpus Delicti: Independent Evidence of a Charged Crime
INSTRUCTION REVISION: Modified 1st paragraph as follows:
The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. Unless you conclude that other evidence shows someone committed the charged crime [or a lesser included offense], you may not rely on any out-of-court statement[s] by the defendant to convict (him/her) [of that crime or lesser offense]. YOU MAY ONLY RELY ON THE DEFENDANT’S OUT-OF-COURT STATEMENTS TO CONVICT (HIM/HER) IF YOU CONCLUDE THAT OTHER EVIDENCE SHOWS THAT THE CHARGED CRIME [OR A LESSER INCLUDED OFFENSE] WAS COMMITTED.
Modified 2nd paragraph as follows:
The other evidence may be slight and need only be enough to support a reasonable inference that someone’s criminal conduct caused an injury, loss, or harm A CRIME WAS COMMITTED. The other evidence does not have to prove beyond a reasonable doubt that the charged crime actually was committed.
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 415 Conspiracy
INSTRUCTION REVISION: Modified Elements 3 and 4 as follows:
3. (The/One of the) defendant[s][,] [or ________ <insert name[s] or description[s] of coparticipant[s]>][,] [or (both/all) of them] committed [at least one of] the FOLLOWING alleged overt act[s] to accomplish <insert alleged crime[s]> : ________ <INSERT THE ALLEGED OVERT ACTS>;
AND
4. [At least one of these/THIS] overt act[s] was committed in California PLACEHOLDER. [*This appears to be a typo.]
Modified 4th paragraph as follows:
To decide whether (the/A) defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit ________ <insert alleged crime[s]>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s] COMMITTED (THIS/THESE) OVERT ACT[S], CONSIDER ALL OF THE EVIDENCE PRESENTED ABOUT THE ACT[S].
Added 5th paragraph.
Modified 10th paragraph, second sentence, as follows;
You may not find (the/A) defendant guilty . . .
AUTHORITY REVISION: Two Specific Intents. Added note that People v. Miller (1996) 46 CA4th 412, was disapproved on other grounds in People v. Cortez (1998) 18 C4th 1223, 1239.
RELATED ISSUES REVISION: Statute of Limitations: Deleted the following: “[W]here there is a question regarding the statute of limitations, a trial court may be required to give a form of unanimity instruction obligating the jury to agree an overt act was committed within the limitations period.” (See People v. Russo(2001) 25 C4th 1124, 1136, fn. 2[dicta].)
Added the following: “[I]f there is a question regarding the statute of limitations, the court may have to require the jury to agree an overt act was committed within the limitations period.” (People v. Russo (2001) 25 C4th 1124, 1136, fn. 2[dicta].)
*FORECITE COMMENTARY: The January 2006 version failed to instruct the jurors to “consider all of the evidence” regarding the alleged overt acts. This could be an issue on appeal. (See FORECITE F 105.2 Inst 1; CG 7.1.) For additional issues re: CALCRIM 415 see FORECITE F 415.
CC 416 Evidence of Uncharged Conspiracy
INSTRUCTION REVISION: Modified Elements 3 and 4 as follows:
3. (The/One of the) defendant[s][,] [or ________ <insert name[s] or description[s] of coparticipant[s]>][,] [or (both/all) of them] committed [at least one OF] THE FOLLOWING overt act[S] to accomplish <insert alleged crime[s]>: ________ <INSERT THE ALLEGED OVERT ACTS>;
AND
[4. At least one of these/THIS overt act[s] was committed in California.
Modified 3rd paragraph as follows:
To decide whether (the/A) defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit ________ <insert alleged crime[s]>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s] COMMITTED (THIS/THESE) OVERT ACT[S], CONSIDER ALL OF THE EVIDENCE PRESENTED ABOUT THE ACT[S].
Added 4th paragraph.
Modified 8th paragraph, second sentence, as follows:
You may not find (the/A) defendant guilty . . .
*FORECITE COMMENTARY: See CALCRIM 415, above.
HOMICIDE
CC 521 Murder: Degrees
[NOTE: This instruction appears in the Table of new and revised CALCRIM instructions (August 2006). However, no changes were found.]
CC 563 Conspiracy to Commit Murder
INSTRUCTION REVISION: Modified Elements as follows:
1. The defendant intended to agree and did agree with [one or more of] (the other defendant[s]/ [or] ________ <insert name[s] or description[s] of coparticipant[s]>) to commit murder INTENTIONALLY AND UNLAWFULLY KILL;
2. At the time of the agreement, the defendant and [one or more of] the other alleged member[s] of the conspiracy intended that one or more of them would commit murder INTENTIONALLY AND UNLAWFULLY KILL;
3. (The/One of the) defendant[s][,] [or ________ <insert name[s] or description[s] of coparticipant[s]>][,] [or (both/all) of them] committed [at least one of] the FOLLOWING overt act[s] alleged to accomplish the murder KILLING: ________ <INSERT THE ALLEGED OVERT ACTS>;
AND
[4.At least one of these/THIS overt act[s] was committed in California.
Added 3rd paragraph.
Modified 4th paragraph as follows:
To decide whether (the/A) defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit murder, please refer to Instructions, which define that crime.
*FORECITE COMMENTARY: The January 2006 instruction improperly defined the conspiratorial objective as intent to murder rather than intent to unlawfully kill. This could be an appellate issue. (See FORECITE F 563.5 Inst 1 [criticizing the January 2006 version on this basis].) For additional issues re: CALCRIM 563 see FORECITE F 563.
ATTEMPTED MURDER
CC 602 Attempted Murder: Peace Officer or Firefighter
INSTRUCTION REVISION: Change in Title to add “Custodial Officer”
Modified Elements 1 & 2 and remaining instruction to include “custodial officer.”
Moved paragraph 7; added paragraphs 7-9 and definition of “custodial officer”; added last two paragraphs re: lawful performance of custodial officer
BENCH NOTES REVISION: Added to second paragraph re: lawful performance of custodial officer and reference to CC 2671.
AUTHORITY REVISION: Added reference to PC 664, 831(a) and 831.5(a) re: custodial officers.
HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
CC 730 Special Circumstances: Murder in Commission of Felony, Pen. Code, §190.2(a)(17) fighter
BENCH NOTES REVISION: Modified 2nd paragraph, 3rd sentence, as follows:
If the homicide occurred prior to ON OR BEFORE June 5, 1990, give CALCRIM No. 701, Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990.
*FORECITE COMMENTARY: The Bench Notes improperly authorized the wrong instructions re: intent to kill for homicides which occurred on June 5, 1990. For additional issues re: CALCRIM 730 see FORECITE F 730.
CC 736 Special Circumstances: Killing by Street Gang Member, Pen. Code, §190.2(a)(22)
INSTRUCTION REVISION: Modified Element 1 as follows:
1. The defendant intended to kill INTENTIONALLY KILLED ________ <INSERT NAME OF VICTIM>;
Modified Element 1 re: Pattern of criminal gang activity as follows:
1. [The] (commission of[,]/ [or] attempted commission of[,]/[or] conspiracy to commit[,]/ [or] solicitation to commit[,]/[or] conviction of[,]/ [or] (Having/having) a juvenile petition sustained for commission of) [any combination of two or more of the following crimes]: ________ <insert one or more crimes listed in Pen. Code, §186.22(e)(1)B (25)>.
<GIVE 1A IF THE CRIME OR CRIMES ARE IN PEN. CODE, §186.22(E)(1)B (25)>
Added Element 1A and 1B.
BENCH NOTES REVISION: Modified Bench Notes to reflect change in Elements defining pattern of criminal gang activity.
AUTHORITY REVISION: Re: Pattern of criminal gang activity, added reference to PC 186.22(j).
RELATED ISSUES REVISION: Added 2nd paragraph re: transferred intend and reference to People v. Shabazz (2006) 38 C4th 55, 66.
*FORECITE COMMENTARY: (1) The January 2006 instruction did not require that the victim be killed. (2) The statutory elements were not properly defined in the January 2006 instruction. This could be an appellate issue. (See generally FORECITE PG V(A)(2); PG X(B)(14).) For additional issues re: CALCRIM 736 see FORECITE F 736.
CC 763 Death Penalty: Factors to ConsiderC Not Identified as Aggravating or Mitigating
INSTRUCTION REVISION: Modified Factors as follows:
(b) Whether or not the defendant has engaged in violent criminal activity other than the murder of _________ <insert name of murder victim> CRIME[S] OF WHICH THE DEFENDANT WAS CONVICTED IN THIS CASE. Violent criminal activity involves the unlawful use or attempted use of force or violence or the direct or implied threat to use force or violence. [The other violent criminal activity alleged in this case will be described in these instructions.]
(c) Any felony of which the defendant has been convicted other than the murder of ________ <insert name of murder victim> CRIME[S] OF WHICH THE DEFENDANT WAS CONVICTED IN THIS CASE.
(d) Whether the defendant was under the influence of extreme mental or emotional disturbance when (he/she) committed the murder of ________ <insert name of murder victim> CRIME[S] OF WHICH (HE/SHE) WAS CONVICTED IN THIS CASE.
(f) Whether the defendant reasonably believed that circumstances morally justified or extenuated (his/her) conduct in committing the murder of ________ <insert name of murder victim> CRIME[S] OF WHICH (HE/SHE) WAS CONVICTED IN THIS CASE.
(I) The defendant’s age at the time of the murder of ________ <insert name of murder victim> CRIME[S] OF WHICH (HE/SHE) WAS CONVICTED IN THIS CASE.
BENCH NOTES REVISION: Delete paragraph re: inserting name of murder victim.
AUTHORITY REVISION: Modified reference to Belmontes v. Woodford(2003) 350 F3d 861, 897.
COMMENTARY REVISION: Modified references to People v. Hillhouse (2002) 27 C4th 469, 509, fn. 6.
*FORECITE COMMENTARY (Factors b and c): The January 2006 version improperly allowed death penalty aggravation under Factor b and c for non-capital crimes charged in the capital trial. (See FORECITE F 763.2 Inst 10 [criticizing the January 2006 version on this ground].)
Factors d, f and i: The January 2006 version failed to allow consideration of mitigation under factors (d), (e) and (I) as to any non-capital crimes charged in the capital trial. This could be an appellate issue. (See generally FORECITE F 763.12 (Factor k) Inst 1.) For additional issues re: CALCRIM 763 see FORECITE F 763.
ASSAULTIVE AND BATTERY CRIMES
CC 801 Mayhem
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
To prove that the defendant is guilty of mayhem, the People must prove that the defendant unlawfully and maliciously CAUSED SERIOUS BODILY INJURY WHEN (HE/SHE) UNLAWFULLY AND MALICIOUSLY:
Added 4th paragraph defining “serious bodily injury” and 5th paragraph to insert definition of serious bodily injury.
BENCH NOTES REVISION: Added 2nd paragraph re: use of bracketed paragraphs.
AUTHORITY REVISION: Added 3rd paragraph re: serious bodily injury.
*FORECITE COMMENTARY: The January 2006 version omitted the requirement that the defendant “caused serious bodily injury.” For additional issues re: CALCRIM 81 see FORECITE F 801.
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death
INSTRUCTION REVISION: Modified Element 1, Alternative D, as follows:
[1. The defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health was MIGHT HAVE BEEN endangered;]
*FORECITE COMMENTARY: The “might have been” language is unconstitutionally overbroad. (See generally FORECITE PG VII(C)(25).) For additional issues re: CALCRIM 821 see FORECITE F 821.
CC 823 Child Abuse
INSTRUCTION REVISION: Modified Element 1, Alternative D, as follows:
[1. The defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health was MIGHT HAVE BEEN endangered;]
CC 852 Evidence of Uncharged Domestic Violence
BENCH NOTES REVISION: 1st paragraph, deleted reference to CJER Mandatory Criminal Jury Instructions Handbook (CJER 13th ed. 2004) Sua Sponte Instructions, §2.112(f) [included without comment within sua sponte instructions]. 3rd and 4th paragraph, changed re: definition of “domestic violence” to reflect 2006 amendments to EC 1109.
AUTHORITY REVISION: Domestic Violence Defined. Changed reference from EC 1109(d) to EC 1109(d)(3).
RELATED ISSUES REVISION: Constitutional Challenges: Rearranged citations.
*FORECITE COMMENTARY: The January 2006 version failed to reflect the 2006 amendments to EC 1109. For additional issues re: CALCRIM 852 see FORECITE F 852.
CC 945 Simple Battery Against Peace Officer
INSTRUCTION REVISION: Changed Title from “Battery Against Peace Officer” to “Simple Battery Against Peace Officer.”
SEX OFFENSES
CC 1015 Oral Copulation by Force, Fear, or Threats
INSTRUCTION REVISION: Modified Alternative 3A as follows:
<Alternative 3AC force or fear>
[force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone SOMEONE.]
*FORECITE COMMENTARY: The August 2006 version merely requires the infliction of unlawful bodily injury on “someone.” The instructions should be tailored to include the name of the alleged victim. (See FORECITE F 820.2 Inst 1.) For additional issues re: CALCRIM 1015 see FORECITE F 1015.
CC 1030 Sodomy by Force, Fear, or Threats
INSTRUCTION REVISION: Modified Alternative 3A as follows:
<Alternative 3AC force or fear>
[by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone SOMEONE.]
COMMENTARY REVISION: 3rd paragraph, changed pages references re: People v. Leal (2004) 33 C4th 999.
RELATED ISSUES REVISION: Added last paragraph re: Penetration May Be Through Victim’s Clothing and citation to People v. Ribera(2005) 133 CA4th 81.
*FORECITE COMMENTARY: See CALCRIM 1015, above. For additional issues re: CALCRIM 1030 see FORECITE F 1030.
CC 1162 Soliciting Lewd Conduct in Public
INSTRUCTION REVISION: Modified Elements as follows:
3. The defendant intended for the conduct to occur WHEN THE DEFENDANT MADE THE REQUEST, (HE/SHE) WAS in (a public place/ [or] a place open to the public [or to public view]);
4. When the defendant made the request, (he/she) did so with the intent to sexually arouse or gratify (himself/herself) or another person, or to annoy or offend another person THE DEFENDANT INTENDED FOR THE CONDUCT TO OCCUR IN (A PUBLIC PLACE/ [OR] A PLACE OPEN TO THE PUBLIC [OR IN PUBLIC VIEW]);
5. When the defendant made the request, a third person who might have been offended by the conduct was present (HE/SHE) DID SO WITH THE INTENT TO SEXUALLY AROUSE OR GRATIFY (HIMSELF/HERSELF) OR ANOTHER PERSON, OR TO ANNOY OR OFFEND ANOTHER PERSON;
[AND]
6. The defendant knew or reasonably should have known that someone who might have been BE PRESENT WHO COULD BE offended by the REQUESTED conduct was present(;/.)
*FORECITE COMMENTARY: The August 2006 version illustrates how the January 2006 version did not require concurrence of act and intent. (See generally FORECITE F 251 Inst 3.) For additional issues re: CALCRIM 1162 see FORECITE F 1162.
CC 1170 Failure to Register as Sex Offender
AUTHORITY REVISION: Added “Jury May Consider Evidence That Significant Involuntary Condition Deprived Defendant of Actual Knowledge”and reference to People v. Sorden(2005)
36 C4th 65, 72.
RELATED ISSUES REVISION: Other Violations of Section 290: Paragraph # 1: changed language in blurb re: People v. Smith(2004) 32 C4th 792, 800B 802.
Registration Requirement for Consensual Oral Copulation With Minor: Added reference to People v. Hofsheier37 C4th 1185, 1191, 1205B 1206.
CRIMINAL THREATS AND HATE CRIMES
CC 1300 Criminal Threat
INSTRUCTION REVISION: Added 8th paragraph re: immediate ability to carry out the threat is not required.
LESSER INCLUDED OFFENSES REVISION: 2nd paragraph, added reference to People v. Chaney(2005) 131 CA4th 253, 257B 258 re: threatening a public officer of an educational institution in violation of PC 71.
RELATED ISSUES REVISION: Related Statutes: Changed reference to PC 95.1 from “[threatening jurors]” to “[threatening jurors after verdict].”
*FORECITE COMMENTARY: Instruction that immediate ability to carry out the threat is not required is argumentative and an improper comment on the evidence. (See FORECITE F 1300.3 Inst 2.) For additional issues re: CALCRIM 1300 see FORECITE F 1300.
NEW INSTRUCTION: CC 1303 Terrorism by Symbol (New August 2006)
*FORECITE COMMENTARY: See generally F 1300.
NEW INSTRUCTION: CC 1304 Cross Burning and Religious Symbol Desecration (New August 2006)
*FORECITE COMMENTARY: See generally F 1300.
NEW INSTRUCTION: CC 1305 Obstructing Religion by Threat (New August 2006)
*FORECITE COMMENTARY: See generally F 1300
CRIMINAL STREET GANGS
CC 1400 Active Participation in Criminal Street Gang
INSTRUCTION REVISION: Modified Element 1 re: pattern of criminal gang activity as follows:
1. [The] (commission of[,]/ [or] attempted commission of[,]/[or] conspiracy to commit[,]/ [or] solicitation to commit[,]/[or] conviction of[,]/ [or] (Having/having) a juvenile petition sustained for commission of) [any combination of two or more of the following crimes]: __________
<GIVE 1A IF THE CRIME OR CRIMES ARE IN PEN. CODE, §186.22(E)(1)B (25)>
1A. (ANY COMBINATION OF TWO OR MORE OF THE FOLLOWING CRIMES/[,][OR] TWO OR MORE OCCURRENCES OF [ONE OR MORE OF THE FOLLOWING CRIMES]:) ________ <INSERT ONE OR MORE CRIMES LISTED IN PEN. CODE, §186.22(E)(1)B (25)>;
[OR]
<GIVE 1B IF ONE OR MORE OF THE CRIMES ARE IN PEN. CODE, §186.22(E)(26)B (30)>
1B. [AT LEAST ONE OF THE FOLLOWING CRIMES:] ________ <INSERT ONE OR MORE CRIMES FROM PEN. CODE, §186.22(E)(1)B (25)>
AND
[AT LEAST ONE OF THE FOLLOWING CRIMES:] ________ <INSERT ONE OR MORE CRIMES IN PEN. CODE, §186.22(E)(26)B (30)>;
BENCH NOTES REVISION: Modified paragraph 3 re: changes in Element numbering and usage.
ADDED LESSER INCLUDED OFFENSES and citation to People v. Burnell(2005) 132 CA4th 938, 944B 945.
*FORECITE COMMENTARY: The January 2006 version failed to accurately define the elements of active participation in a criminal street gang. This could be an appellate issue. (See generally FORECITE PG V(A)(2); PG X(B)(14).) For additional issues re: CALCRIM 1400 see FORECITE F 1400.
CC 1401 Felony Committed for Benefit of Criminal Street Gang
INSTRUCTION REVISION: Modified Element 1 re: pattern of criminal gang activity (see CC 1400. Active Participation in Criminal Street Gang , above.)
BENCH NOTES REVISION: Modified paragraph 3 re: changes in Element numbering and usage.
*FORECITE COMMENTARY: See CALCRIM 1400, above. For additional issues re: CALCRIM 1401 see FORECITE F 1401.
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1750 Receiving Stolen Property
BENCH NOTES REVISION: Added 2nd paragraph and reference to People v. Garza(2005) 35
C4th 866, 881B 882.
RELATED ISSUES REVISION: Dual Convictions Prohibited: Added reference to People v. Hinks(1997) 58 CA4th 1157.
THEFT AND EXTORTION
CC 1804 Theft by False Pretense
INSTRUCTION REVISION: Modified Elements as follows:
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;
3. The owner [or the owner’s agent] let the defendant [OR ANOTHER PERSON] have 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 got the property ACTED, (he/she) intended (to deprive the owner of it 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).
AUTHORITY REVISION: Added “Defendant Need Not Be Beneficiary of Theft” and reference to People v. Cheeley(1951) 106 CA2d 748, 753.
*FORECITE COMMENTARY (Element 2): The August 2006 version adds “or another person” and, therefore, failed to adequately tailor the instruction to the facts. (See FORECITE F 400.2 Inst 1 & Inst 2.)
Element 3: The January 2006 version did not require the defendant to “take” possession.
Element 4: The August 2006 version fails to require concurrence of act and intent. (See generally FORECITE F 251 Inst 3.) For additional issues re: CALCRIM 1804 see FORECITE F 1804.
CRIMINAL WRITINGS AND FRAUD
CC 2040 Unauthorized Use of Personal Identifying Information
INSTRUCTION REVISION: Added 4th paragraph re: definition of “person.”
AUTHORITY REVISION: Added “Person Defined” and reference to PC 530.5(g).
VEHICLE OFFENSES
CC 2101 Driving With 0.08 Percent Blood Alcohol Causing Injury
INSTRUCTION REVISION: Modified 3rd paragraph to include “urine.”
CC 2111 Driving With 0.08 Percent Blood Alcohol
INSTRUCTION REVISION: Modified 3rd paragraph to include “urine.”
RELATED ISSUES REVISION: Deleted last sentence: “However, evidence of variability in urine-alcohol partition ratios is admissible. (People v. Acevedo(2001) 93 CA4th 757, 765.)”
CC 2140 Failure to Perform Duty Following Accident: Death or InjuryC Defendant Driver
INSTRUCTION REVISION: Modified Element 4 as follows:
(b) When requested, to show (his/her) driver’s license, or any other available identification, to (the person struck/the driver or occupants of any vehicle collided with) or any peace officer at the scene of the accident;
(c) (B) To provide reasonable assistance to any person injured in the accident;
[OR]
(d) (c) To give to (the person struck/the driver or occupants of any vehicle collided with) or any peace officer at the scene of the accident all of the following information:
Modified last bulleted item under former (d) now (c) as follows:
The names and current residence addresses of any occupants of the defendant’s vehicle who were injured in the accident(;/.).]
Added (d).
*FORECITE COMMENTARY: The January 2006 version failed to clearly and accurately define the requirements of Element 4. This could be an appellate issue. (See generally FORECITE PG V(A)(2); PG X(B)(14).) For additional issues re: CALCRIM 2140 see FORECITE F 2140.
CC 2180 Evading Peace Officer: Death or Serious Bodily Injury
INSTRUCTION REVISION: Modified 7th paragraph as follows:
A vehicle is distinctively marked if it has FEATURES THAT ARE REASONABLY NOTICEABLE TO OTHER DRIVERS, INCLUDING a red lamp, and siren, AND AT LEAST ONE OTHER FEATURE THAT MAKES IT LOOK DIFFERENT FROM VEHICLES THAT ARE NOT USED FOR LAW ENFORCEMENT PURPOSES. [It may also have additional markings or devices that identify it as a peace officer’s vehicle.] The vehicle’s appearance must be such that a person would know or reasonably should know that it is a law enforcement vehicle .
BENCH NOTES REVISION: Added parentheses to Element 5 items. Deleted 4th paragraph and references to People v. Estrella(1995) 31 CA4th 716, 722B 723; People v. Mathews(1998) 64 CA4th 485, 490; People v. Chicanti(1999) 71 CA4th 956, 962; People v. Hudson, No. S122816 (CSup.Ct, rev. granted May 12, 2004) 2004 C LEXIS 4030.)
AUTHORITY REVISION: Distinctively Marked Vehicle: Deleted reference to People v. Estrella (1995) 31 CA4th 716, 722B 723; People v. Mathews(1998) 64 CA4th 485, 491; People v. Chicanti(1999) 71 CA4th 956, 962.
Deleted “Red Lamp, Siren, and Distinctive Uniform Must Be Proved” and references to People v. Shakhvaladyan(2004) 117 CA4th 232, 237B 238. Added “Red Lamp, Siren, Additional Distinctive Feature of Car, and Distinctive Uniform Must Be Proved” and added People v. Hudson(2006) 38 C4th 1002, 1013.
*FORECITE COMMENTARY: The January 2006 version failed to comply with People v. Hudson (2006) 38 C4th 1002. This could be an appellate issue. (See generally FORECITE PG V(A)(2); PG X(B)(14).) For additional issues re: CALCRIM 2180 see FORECITE F 2180.
CC 2181 Evading Peace Officer: Reckless Driving
INSTRUCTION REVISION: Added parentheses to Element 4 items. Modified 9th paragraph re: “distinctively marked vehicle” (See CC 2180 Evading Peace Officer: Death or Serious Bodily Injury, above.)
BENCH NOTES REVISION: See CC 2180 Evading Peace Officer: Death or Serious Bodily Injury, above.
AUTHORITY REVISION: See CC 2180 Evading Peace Officer: Death or Serious Bodily Injury, above.
*FORECITE COMMENTARY: See CALCRIM 2180, above. For additional issues re: CALCRIM 2180 see FORECITE F 2180.
CC 2182 Evading Peace Officer: Misdemeanor
INSTRUCTION REVISION: Modified 6th paragraph re: “distinctively marked vehicle” (See CC 2180 Evading Peace Officer: Death or Serious Bodily Injury, above).
BENCH NOTES REVISION: See CC 2180 Evading Peace Officer: Death or Serious Bodily Injury, above.
AUTHORITY REVISION: See CC 2180 Evading Peace Officer: Death or Serious Bodily Injury, above.
*FORECITE COMMENTARY: See CALCRIM 2180, above. For additional issues re: CALCRIM 2180 see FORECITE F 2180.
CONTROLLED SUBSTANCES
CC 2303 Possession of Controlled Substance While Armed With Firearm
INSTRUCTION REVISION: Added 3rd paragraph re: knowledge that firearm is loaded and operable.
BENCH NOTES REVISION: Added “Knowledge That Firearm is Loaded or Operable Not Required” and reference to People v. Heath(2005) 134 CA4th 490, 498.
CC 2304 Simple Possession of Controlled Substance
INSTRUCTION REVISION: Modified 8th paragraph to include “[naturopathic doctor]” to the list of those who may prescribe controlled substances.
BENCH NOTES REVISION: Added 2nd paragraph re: amendment to HS 11150 to include naturopathic doctor.
*FORECITE COMMENTARY: The January 2006 version failed to include “naturopathic doctor” as a person who may legally prescribe controlled substances. This could be an appellate issue. (See generally FORECITE PG V(A)(6).) For additional issues re: CALCRIM 2304 see FORECITE F 2304.
CC 2400 Using or Being Under the Influence of Controlled Substance
INSTRUCTION REVISION: Modified 5th paragraph to include “[naturopathic doctor]” to the list of those who may prescribe controlled substances.
BENCH NOTES REVISION: Added 3rd paragraph re: amendment to HS 11150 to include naturopathic doctor.
*FORECITE COMMENTARY: See CC 2304, above.
WEAPONS
CC 2500 Illegal Possession, etc., of Weapon
INSTRUCTION REVISION: Modified Element 3, Alternative 3A, as follows:
[3. The defendant (possessed/manufactured/caused to be manufactured/imported/kept for sale/offered or exposed for sale/gave/lent) the object as a weapon. When deciding if WHETHER the defendant (possessed/manufactured/caused to be manufactured/imported/ kept for sale/offered or exposed for sale/gave/lent) the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was (possessed/manufactured/caused to be manufactured/ imported/kept for sale/offered or exposed for sale/gave/lent)[,] [and] [where the defendant was going][,] [and] [whether the object was changed from its standard form][,] and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.(;/.)]
Modified Element 3, Alternative 3b, as follows:
[3. The defendant knew that the object (was (a/an) ________ <insert type of weapon from Pen. Code, §12020(a), e.g., “cane sword,” SHORT-BARRELED SHOTGUN >/could be used ________ <insert description of weapon, e.g., “as a stabbing weapon,” or “for purposes of offense or defense”>).]
Deleted paragraph 5:
[The People do not have to prove that the defendant used the object as a weapon.]
BENCH NOTES REVISION: Modified paragraph 3 re: Element 3A re: sua sponte duty to instruct when object is possessed “as a weapon.” Deleted reference to People v. Gaitan(2001) 92 CA4th 540, 547 and added reference to People v. Grubb(1965) 63 C2d 614, 620B 621,fn. 9.
Modified paragraph 4, re: Element 3B re: object having “has no conceivable innocent function,” added reference to People v. Gaitan(2001) 92 CA4th 540, 547 and deleted reference to People v. Grubb(1965) 63 C2d 614, 620B 621, fn. 9.
AUTHORITY REVISION: Added “Specific Intent Includes Knowledge of Forbidden Characteristics of Weapon” and reference to People v. King(2006) 38 C4th 617, 627B 628.
COMMENTARY REVISION: Modified last paragraph, first two sentences, as follows:
In element 3 of the instruction, the court should give alternative 3A 3B if the object has no innocent uses, inserting the appropriate description of the weapon. If the object has innocent uses, the court should give alternative 3B 3A.
CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang
INSTRUCTION REVISION: Modified Element 1 re: “pattern of criminal gang activity” as follows:
1. [The] (commission of[,]/ [or] attempted commission of[,]/[or] conspiracy to commit[,]/ [or] solicitation to commit[,]/[or] conviction of[,]/ [or] (Having/having) a juvenile petition sustained for commission of) [any combination of] two or more of the following crimes: ________ <insert one or more crimes listed in Pen. Code, §186.22(e)(1)B (25)>;
<GIVE 1A IF THE CRIME OR CRIMES ARE IN PEN. CODE, §186.22(E)(1)B (25)>
1A. (ANY COMBINATION OF TWO OR MORE OF THE FOLLOWING CRIMES/[,][OR] TWO OR MORE OCCURRENCES OF [ONE OR MORE OF THE FOLLOWING CRIMES]:) ________ <INSERT ONE OR MORE CRIMES LISTED IN PEN. CODE, §186.22(E)(1)B (25)>;
[OR]
<GIVE 1B IF ONE OR MORE OF THE CRIMES ARE IN PEN. CODE, §186.22(E)(26)B (30)>
1B. [AT LEAST ONE OF THE FOLLOWING CRIMES:] ________ <INSERT ONE OR MORE CRIMES FROM PEN. CODE, §186.22(E)(1)B (25)> AND [AT LEAST ONE OF THE FOLLOWING CRIMES:] ________ <INSERT ONE OR MORE CRIMES IN PEN. CODE, §186.22(E)(26)B (30)>;
Modified paragraph 11 as follows:
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)B (25) (30) inserted in definition of pattern of criminal gang activity>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].
BENCH NOTES REVISION: Modified paragraph 5 re: Element 1 defining pattern of criminal gang activity concerning crimes listed in PC 186.22(e)(1)B (25) and 186.22(e)(26)B (30).
*FORECITE COMMENTARY: See CALCRIM 736, above.
CC 2560 Possession, etc., of Assault Weapon or. 50 BMG Rifle
BENCH NOTES REVISION: Modified paragraph 2 and added reference to PC 12280(a)(3).
CC 2562 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense: Pen. Code, §12280 Charged Only as Enhancement
BENCH NOTES REVISION: Modified paragraph 4 and added reference to PC 12280(a)(3).
CRIMES AGAINST GOVERNMENT
CC 2655 Causing Death or Serious Bodily Injury While Resisting Peace Officer
INSTRUCTION REVISION: Added 6th paragraph re: “Willful resistance may include fleeing from the officer.”
AUTHORITY REVISION: Added “Willful Resistance Includes Flight” and reference to People v. Superior Court (Ferguson) (2005) 132 CA4th 1525, 1535.
TAX CRIMES
CC 2800 Failure to File Tax Return
INSTRUCTION REVISION: Modified Element 2 as follows and added Element 3:
2. The defendant did not REPEATEDLY FAILED TO (file the tax return/ [or] supply the REQUIRED information) by the required time. OVER A PERIOD OF TWO YEARS OR MORE;
AND
3. THE DEFENDANT’S FAILURE TO (FILE THE RETURN/ [OR] SUPPLY REQUIRED INFORMATION) RESULTED IN AN ESTIMATED DELINQUENT TAX LIABILITY OF AT LEAST FIFTEEN THOUSAND DOLLARS.
COMMENTARY REVISION: Added last three paragraphs re: Revenue and Taxation Code section 19701(a) and Assembly Bill No. 139.
*FORECITE COMMENTARY: The January 2006 version omitted the following Elements:
B The defendant “repeatedly failed to” file or to supply “required” information.
B The failure resulted in a delinquent tax liability of at least $15,000.
This could be an appellate issue. (See generally FORECITE PG V(A)(2); PG X(B)(14).)
CC 2810 False Tax Return
INSTRUCTION REVISION: Modified Element 1 as follows:
1. The defendant REPEATEDLY (supplied information to the Franchise Tax Board/ [or] (made[,]/ [or] verified[,]/ [or] signed[,]/ [or] rendered) a (tax return[S]/ [or] statement[S])) OVER A PERIOD OF TWO YEARS OR MORE;
Added Element 4.
COMMENTARY REVISION: Added last three paragraphs re: Revenue and Taxation Code section 19701(a) and Assembly Bill No. 139.
*FORECITE COMMENTARY: See CALCRIM 2800, above.
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2962 Selling or Furnishing Alcoholic Beverage to Person Under 21
INSTRUCTION REVISION: Modified 7th paragraph as follows:
As used here, a government-issued document is a document [INCLUDING A DRIVER’S LICENSE OR AN IDENTIFICATION CARD ISSUED TO A PERSON IN THE ARMED FORCES] that has been, or appears to have been, issued by a government agency and contains the person’s name, date of birth, description, and picture. This definition includes a driver’s license [or an identification card issued to a person in the armed forces]. The government-issued document does not have to be genuine.
CC 2963 Permitting Person Under 21 to Consume Alcoholic Beverage
INSTRUCTION REVISION: Modified 7th paragraph. (See CC 2962 Selling or Furnishing Alcoholic Beverage to Person Under 21, above.)
CC 2964 Purchasing Alcoholic Beverage for Person Under 21: Resulting in Death or Great Bodily Injury
INSTRUCTION REVISION: Modified 10th paragraph. (See CC 2962. Selling or Furnishing Alcoholic Beverage to Person Under 21, above.)
AUTHORITY REVISION: Elements: deleted reference to In re Jennings (2004) 34 C4th 254, 263.
CC 2982 Persuading, Luring, or Transporting a Minor Under 14 Years of Age
INSTRUCTION REVISION: Changed Title from “Persuading, Luring, or Transporting a Minor 12 Years Old or Younger” to “Persuading, Luring, or Transporting a Minor Under 14 Years of Age.”
Modified Element 3 as follows:
3. ________ <insert name of minor> was 12 years old or younger UNDER 14 YEARS OF AGE at the time;
Modified Element 5 as follows:
5. The defendant knew or reasonably should have known that ________ <insert name of minor> was 12 years old or younger UNDER 14 YEARS OF AGE at the time;
BENCH NOTES REVISION: Added last paragraph re: PC 272 amended by Stats. 2005, ch. 461
(AB33) changing the victim’s age to “under 14 years of age” effective January 1, 2006.
ENHANCEMENTS AND SENTENCING FACTORS
CC 3115 Armed With Firearm, Pen. Code, §12022(a)(1)
INSTRUCTION REVISION: Modified Element 1 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 IN COUNT[S] [OR THE LESSER CRIME[S] OF ________ <INSERT NAME[S] OF ALLEGED LESSER OFFENSE[S]>,];
AUTHORITY REVISION: Changed “In Commission of Felony” to “In Commission of Felony/Facilitative Nexus” and added reference to People v. Bland(1995) 10 C4th 991, 1002.
Added “Presence of Gun Cannot Be Accident or Coincidence” and reference to Smith v. United States(1993) 508 US 223, 238 [113 SCt 2050, 124 LEd2d 138].
RELATED ISSUES REVISION: Added last paragraph re: Facilitative Nexus/Connection and reference to People v. Pitto and People v. Bland(1995) 10 C4th 991, 1002.
*FORECITE COMMENTARY: The January 2006 version omitted the nexus requirement between the firearm and the charged crime. This could be an appellate issue. (See generally FORECITE PG V(A)(2); PG X(B)(14).) For additional issues re: CALCRIM 3115 see FORECITE F 3115.
CC 3116 Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle, Pen. Code, §12022(a)(2)
INSTRUCTION REVISION: Modified 1st paragraph as follows:
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 one of the principals was armed with (an assault weapon/a machine gun/a .50 BMG rifle) during IN the commission [or attempted commission] of that crime. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
Modified Element 1 re: “armed with” as follows:
1. Carries (an assault weapon/a machine gun/a .50 BMG rifle) [or has (an assault weapon/a machine gun/a .50 BMG rifle) available] for use in either offense or defense IN CONNECTION WITH THE CRIME[S] CHARGED IN COUNT[S] [OR THE LESSER CRIME[S] OF ________ <INSERT NAME[S] OF ALLEGED LESSER OFFENSE[S]>];
AUTHORITY REVISION: Changed “In Commission of Felony” to “In Commission of Felony/Facilitative Nexus” and added reference to People v. Bland(1995) 10 C4th 991, 1002.
Added “Presence of Gun Cannot Be Accident or Coincidence” and reference to Smith v. United States(1993) 508 US 223, 238 [113 SCt 2050, 124 LEd2d 138].
*FORECITE COMMENTARY: See CALCRIM 3115, above. For additional issues re: CALCRIM 3116 see FORECITE F 3116.
CC 3117 Armed With Firearm: Knowledge That Coparticipant Armed, Pen. Code, §12022(d)
INSTRUCTION REVISION: Modified 1st paragraph as follows:
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 one of the principals was armed with (an assault weapon/a machine gun/a .50 BMG rifle) during IN the commission [or attempted commission] of that crime. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
Modified Element 1 re: “armed with” 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 IN COUNT[S] [OR THE LESSER CRIME[S] OF ________ <INSERT NAME[S] OF ALLEGED LESSER OFFENSE[S]>];
AUTHORITY REVISION: Changed “In Commission of Felony” to “In Commission of Felony/Facilitative Nexus” and added reference to People v. Bland(1995) 10 C4th 991, 1002.
Added “Presence of Gun Cannot Be Accident or Coincidence” and reference to Smith v. United States(1993) 508 US 223, 238 [113 SCt 2050, 124 LEd2d 138].
*FORECITE COMMENTARY: See CALCRIM 3115, above. For additional issues re: CALCRIM 3117 see FORECITE F 3117.
CC 3261 During Commission of Felony: DefinedC Escape Rule
INSTRUCTION REVISION: Changed 1st paragraph as follows:
The People must prove that ________ <insert allegation, e.g., the defendant personally used a firearm> during IN the commission [or attempted commission] of ________ <insert felony or felonies>.
DEFENSES AND INSANITY
CC 3454 Commitment as Sexually Violent Predator
INSTRUCTION REVISION: Modified Element 3 as follows:
3. As a result of that diagnosed mental disorder, it is likely that (he/she) will be IS a danger to the health and safety of others because IT IS LIKELY THAT (he/she) will engage in sexually violent predatory criminal behavior(;/.)
Added 3rd paragraph defining “diagnosed mental disorder;” modified and split former 3rd (now 4th paragraph) as follows:
A person is likely to engage in sexually violent predatory criminal behavior if there is a SUBSTANTIAL, serious and well-founded risk that the person will engage in such conduct if released into the community.
The likelihood that the person will engage in such conduct does not have to be greater than 50 percent.
Deleted former 8th paragraph defining “diagnosed mental disorder.” Modified former 9th (now 10th paragraph) as follows:
You may not conclude that ________ <insert name of respondent> is a sexually violent predator based solely on (his/her) alleged prior conviction[s] WITHOUT ADDITIONAL EVIDENCE THAT (HE/SHE) CURRENTLY HAS SUCH A DIAGNOSED MENTAL DISORDER.
NOTE: The definition of “diagnosed mental disorder” (former 8th paragraph, now 4th paragraph) was changed as follows:
[The term diagnosed mental disorder includes congenital or acquired conditions affecting a person’s emotional or volitional capacity and predisposing CONDITIONS EITHER EXISTING AT BIRTH OR ACQUIRED AFTER BIRTH THAT AFFECT A PERSON’S ABILITY TO CONTROL EMOTIONS AND BEHAVIOR AND PREDISPOSE that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others.]
BENCH NOTES REVISION: Modified 2nd paragraph as follows:
If there is sufficient evidence IS PRESENTED to raise a reasonable doubt as to whether confinement in a secure facility is necessary AMENABILITY TO VOLUNTARY TREATMENT, the court has a sua sponte duty to instruct on this issue GIVE BRACKETED ELEMENT 4-. (People v. Grassini (2003) 113 CA4th 765, 777; People v. Calderon(2004) 124 CA4th 80, 93.) Give bracketed element 4.
Added paragraph 4 re: ability to control violent criminal sexual behavior and reference to People v. Williams (2003) 31 C4th 757, 776B 777
AUTHORITY REVISION: Added “Impairment of Control” and reference to In re Howard N. (2005) 35 C4th 117, 128B 130 and “Amenability to Voluntary Treatment” and reference to People v. Cooley(2002) 29 C4th 228, 256.
*FORECITE COMMENTARY: The January 2006 version contained the following deficiencies:
(1) Element 3: Improperly defined element to require that the defendant “will be” a danger.
(2) Deficiently defined “diagnosed mental disorder.”
(3) Omitted requirement that the risk be “substantial.”
These deficiencies may be the basis for an appellate issue. (See generally FORECITE F 4.19 n2.)
POST-TRIAL: CONCLUDING
CC 3517Deliberations and Completion of Verdict Forms: Lesser Offenses or DegreesC Without Stone Instruction (Non-Homicide)
INSTRUCTION REVISION: Entire instruction replaced.
BENCH NOTES REVISION: 2nd paragraph deleted last portion of paragraph and reference to CC 3518.
*FORECITE COMMENTARY:
(1) The August 2006 revision completely revises the January 2006 instruction in recognition of the fact that the latter was not adequately understandable to the jury, thus raising a potential appellate issue in any case where the January 2006 version was used. (See generally Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839 [instructions must be “terms comprehensible to the lay person”]; see also PG I(B)(1); PG IX(D); CG 7.2.1.)
(2) The January 2006 version was improperly coercive by failing to inform the jurors what to do if they cannot agree about whether the defendant is guilty of the greater charge. (See FORECITE F 100.7 Inst 1.)
(3) As with the January 2006 version, the August 2006 version erroneously omits the language on the Dewberry principle. (See FORECITE F 3517 Inst 2.) For additional issues re: CALCRIM 3517 see FORECITE F 3517.
CC 3518 Deliberations and Completion of Verdict Forms: Lesser Offenses or DegreesC With Store Instruction (Non-Homicide)
INSTRUCTION REVISION: Entire instruction replaced.
BENCH NOTES REVISION: Paragraph 2, second portion of paragraph deleted reference to CC 3517 and added CC 3519.
*FORECITE COMMENTARY: See CALCRIM 3517, above.
BECOME A FORECITE SUBSCRIBER!!
Contact: James Publishing
3505 Cadillac Avenue, Suite H
Costa Mesa, CA 92626
https://www.jamespublishing.com/order.aspx
Phone (800) 440-4780 or (714) 755-5450
Fax (714) 751-2709
BECOME A FORECITE CONTRIBUTOR !!
FAX: (707) 538-0125
e-mail: tlundy@juryinstruction.com
If you’ve had success with a particular FORECITE instruction or issue, please let us know,
and we will put it in the newsletter so others can benefit from your experience.
We also invite you to become a FORECITE contributor.
Please send us any instructions, briefs, motions, etc.
that you feel would benefit other criminal defense practitioners.
