POCKET PART REVIEW: JANUARY 2003 POCKET PART
COMPENDIUM OF CALJIC REVISIONS IN THE 6TH EDITION
THE FOLLOWING INSTRUCTIONS WERE MODIFIED BUT NO SUBSTANTIVE CHANGES WERE MADE:
CJ 1.23.2
CJ 12.22.5
CJ 16.830
CJ 17.19
CJ 17.19.5
CJ NEW INSTRUCTION —
CJ 2.01 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE — GENERALLY
USE NOTE REVISION: Expanded Use Note re: that CJ 2.01 and CJ 2.02 should never be given together; added reference to People v. Wright (90) 52 C3d 367, 406 [276 CR 731].
CJ 2.02 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE SPECIFIC INTENT OR MENTAL STATE
USE NOTE REVISION: Expanded Use Note re: that CJ 2.01 and CJ 2.02 should never be given together; added reference to People v. Wright (90) 52 C3d 367, 406 [276 CR 731].
CJ 3.00 PRINCIPALS–DEFINED (PC 31)
COMMENT REVISION: Added Comment and reference to People v. McCoy (2001) 25 C4th 1111 [108 CR2d 188].
CJ 3.10 ACCOMPLICE–DEFINED
COMMENT REVISION: Added Comment re: children in incestuous contacts and reference to People v. Tobias (2001) 25 C4th 327 [106 CR2d 80].
CJ 3.40 CAUSE–“BUT FOR” TEST
COMMENT REVISION: Added Comment and reference to People v. Cervantes (2001) 26 C4th 860 [111 CR2d 148].
CJ 3.41 MORE THAN ONE CAUSE/CONCURRENT CAUSE
COMMENT REVISION: Comment and reference to People v. Sanchez (2001) 26 C4th 834 [111 CR2d 129].
CJ 4.19 COMMITMENT AS SEXUALLY VIOLENT PREDATOR (WI 6600-6604)
INSTRUCTION REVISION: Modified 2nd ¶ as follows [added language is capitalized]:
The term “sexually violent predator” means a person who, (1) has been convicted of a sexually violent offense against two or more victims for which he or she received a [determinate] sentence, and (2) has a diagnosed mental disorder that makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent [PREDATORY] criminal behavior.
Modified 20th ¶ as follows [added language is capitalized]:
In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent to be a sexually violent predator based on prior offenses without [relevant] evidence of a currently diagnosed mental disorder that makes [him] [her] a danger to the health and safety of others in that it is likely that [he] [she] will engage in sexually violent [PREDATORY] criminal behavior.
COMMENT REVISION: Added Comment and reference to People v. Gordon (2001) 92 CA4th 342 [111 CR2d 795] re: addition of “predatory.” Added reference to People v. Hubbart (2001) 88 CA4th 1202, 1231-33 [106 CR2d 490].
NOTE: People v. Gordon has been DEPUBLISHED.
CJ 4.21.1 VOLUNTARY INTOXICATION–TRIAL WITH GENERAL AND SPECIFIC INTENT CRIMES
USE NOTE REVISION: Added citation for People v. Goecke (98) 457 Mich. 442 [579 NW2d 868] [knowledge–receiving stolen property].
CJ 4.47 DEFENSE OF IDIOCY (PC 26)
COMMENT REVISION: NOTE: The 2001 Pocket Part Comment cites People v. Phillips (2000) 83 CA4th 170 [99 CR2d 448]. However, the 2002 Pocket Part cites People v. Harris (same citation). The correct case name is People v. Phillips. Review in Phillips was denied 11/29/2000 in co-appellant’s case, People v. Harris (S091746) 2000 Cal. LEXIS 9312. The remainder of the Comment is correct.
CJ 6.10 CONSPIRACY AND OVER ACT–DEFINED
COMMENT REVISION: Added Comment re: unanimity and overt acts and reference to People v. Russo (2001) 25 C4th 1124 [108 CR2d 436].
CJ 6.22 CONSPIRACY–CASE MUST BE CONSIDERED AS TO EACH DEFENDANT
INSTRUCTION REVISION: Added second paragraph.
COMMENT REVISION: Added Comment re: People v. Russo (2001) 25 C4th 1124 [108 CR2d 436].
CJ 6.50 GANG CRIME (PC 186.22(a))
INSTRUCTION REVISION: Modified Element 4 as follows [added language is capitalized:]
4. That person EITHER DIRECTLY AND ACTIVELY COMMITTED OR aided and abetted [another] [other] member[s] of that gang in committing the crime[s] of ____________.
USE NOTE REVISION: Added Use Note re: “primary activities” and reference to People v. Sengapadychith (2001) 26 C4th 316 [109 CR2d 851].
COMMENT REVISION: Added Comment re: this revision and reference to People v. Ngoun (2001) 88 CA4th 432 [105 CR2d 837].
CJ 7.21.1 NEW INSTRUCTION — PERJURY BY AFFIDAVIT (PC 118a)
CJ 8.12 MURDER–KILLER OTHER THAN PERPETRATOR OF UNDERLYING CRIME (PC 187, PC 189)
COMMENT REVISION: Added Comment and reference to People v. Cervantes (2001) 26 C4th 860 [1111 CR2d 148].
CJ 8.40 VOLUNTARY MANSLAUGHTER–DEFINED (PC 192(a))
USE NOTE REVISION: Added reference to People v. Crowe (2001) 87 CA4th 86, 95 [104 CR2d 319].
COMMENT REVISION:
CJ 8.85 TRANSFERRED INTENT
COMMENT REVISION: Added Comment and reference to People v. Sanchez (2001) 26 C4th 834 [111 CR2d 129].
CJ 9.00 ASSAULT–DEFINED (PC 240)
INSTRUCTION REVISION: Modified Element 2 and 3 as follows [added language is capitalized; deleted language is between << >>:]
<<[>>2. <<At the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon>> THE PERSON COMMITTING THE ACT WAS AWARE OF FACTS THAT WOULD LEAD A REASONABLE PERSON TO REALIZE THAT AS A DIRECT, NATURAL AND PROBABLY RESULT OF THIS ACT THAT PHYSICAL FORCE WOULD BE APPLIED TO another person; and]
<<[2.] [>>3.<<]>> At the time the act was committed, the person COMMITTING THE ACT had the present ability to apply physical force to the person of another.
Modified 7th ¶ as follows:
THE WORD “Willfully” means that the person committing the act did so intentionally. HOWEVER, AN ASSAULT DOES NOT REQUIRE AN INTENT TO CAUSE INJURY TO ANOTHER PERSON, OR AN ACTUAL AWARENESS OF THE RISK THAT INJURY MIGHT OCCUR TO ANOTHER PERSON.
USE NOTE REVISION: Added Use Note re: revision based on People v. Williams (2001) 26 C4th 779 [111 CR2d 114].
CJ 9.00.1 ASSAULT–CONDITIONAL THREAT
INSTRUCTION REVISION: Modified ¶ 1 and 4 as follows [added language is capitalized; deleted language is between << >>:]
<<A willful [and unlawful] act which by its nature would probably and directly result in the application of physical force on another person>> AN ASSAULT includes a conditional threat to apply physical force upon another, providing that:
3. The person making the threat has placed [himself] [herself] physically in a position to inflict SUCH physical force; and
USE NOTE REVISION: Added Use Note re: revision based on People v. Williams (2001) 26 C4th 779 [111 CR2d 114].
CJ 9.36 CHILD BEATING (PC 273d)
INSTRUCTION REVISION: 2nd ¶, inserted “an” before “injury resulting in a traumatic condition.” Element 1, inserted “an” before “injury upon the body of a child;” Element 2, inserted “this” before “injury resulted in a traumatic condition.”
COMMENT REVISION: Added Comment concerning legislative addition of the word “an.”
CJ 9.37 CHILD ABUSE/NEGLECT/ENDANGERMENT FELONY (PC 273a(a))
INSTRUCTION REVISION: NOTE: The 2002 Pocket Part indicates that it is a 1998 Revision, however, it does not appear in the July 2001 Pocket Part. The comparison below is based on the instruction in the 6th Edition bound volume.
Changed reference in title and instruction from PC 273a(1) to PC 273a(a). Modified 4th ¶ as follows [added language is capitalized; deleted language is between << >>:]
[b] willfully causes or, as a result of criminal negligence, permits the child to be placed in a situation <<that endangers the child’s>> WHERE HIS OR HER person or health IS ENDANGERED,]]
Modified 17th ¶ as follows [added language is capitalized; deleted language is between << >>:]
[b.] [willfully caused or, as a result of criminal negligence, permitted the child to be placed in a situation <<that endangered the child’s>> WHERE HIS OR HER person or health WAS ENDANGERED;]] and
COMMENT REVISION: Added reference to People v. Sargent (99) 19 C4th 1206 [81 CR2d 835].
CJ 9.54 KIDNAPPING TO COMMIT ROBBERY AND/OR CERTAIN SEX CRIMES (PC 209(b)(1))
INSTRUCTION REVISION: 6th ¶, added “[rape]” after “[robbery]”.
COMMENT REVISION: Rewording of Comment and reference to People v. Nguyen (2000) 22 C4th 872 [95 CR2d 178].
CJ 9.54.1 KIDNAPPING DURING COMMISSION OF CARJACKING (PC 209.5(a))
COMMENT REVISION: Added reference to People v. Duran (2001) 88 CA4th 1371 [106 CR2d 812].
CJ 9.94 CRIMINAL THREATS (PC 422)
INSTRUCTION REVISION: Changed title from “Terrorist Threats” to “Criminal Threats.” Added 6th, 7th, and 8th paragraphs defining “sustained fear,” different degrees of unconditionality, and defining “immediate.” Modified Element 5 as follows [added language is capitalized; deleted language is between << >>:]
5. The threatening statement caused the <<other>> person THREATENED reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family’s safety].
COMMENT REVISION: Added Comment re: definitions of “sustained fear,” “conditional threats,” and “immediate” and references to People v. Allen (95) 33 CA4th 1149, 1156 [40 CR2d 7], People v. Stanfield (95) 32 CA4th 1152, 1158 [38 CR2d 328], People v. Bolin (98) 18 C4th 297, 340 [75 CR2d 412], People v. Brooks (94) 26 CA4th 142, 149 [31 CR2d 283] and People v. Melhado (98) 60 CA4th 1529, 1538 [70 CR2d 878]. Added Comment re: PC 422 requires verbal statement and reference to People v. Franz (2001) 88 CA4th 1426 [106 CR2d 773] and People v. Toledo (2001) 26 C4th 221 [109 CR2d 315]. Added Comment re: attempted criminal threat and reference to People v. Toledo (2001) 26 C4th 221 [109 CR2d 315].
CJ 10.30 FORCIBLE ACTS OF PENETRATION–FORCE OR THREATS (PC 289(a)[(1)][(2)])
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.31 UNLAWFUL PENETRATION BY FOREIGN OBJECT–ACTING IN CONCERT (PC 264.1)
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.32 FORCIBLE ACTS OF PENETRATION–WITH PERSON LACKING CAPACITY (PC 289(b))
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.33 FORCIBLE ACTS OF PENETRATION–LACK OF CONSENT–INTOXICANTS, ETC.–UNCONSCIOUSNESS
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.34 FORCIBLE ACTS OF PENETRATION–LACK OF CONSENT–FRAUD (PC 289(f))
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.35 FORCIBLE ACTS OF PENETRATION–UNLAWFUL THREAT OF PUBLIC AUTHORITY (PC 289(g))
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.37 SEXUAL BATTERY–DEFINED (PC 243.4(a), PC 243.4(b))
USE NOTE REVISION: Added Use Note re: sua sponte instruction on PC 243.4(d) as lesser included offense.
CJ 10.50 FORCIBLE ACTS OF PENETRATION–WITH PERSON UNDER FOURTEEN YEARS–FORCE OR THREATS (PC 289(j))
COMMENT REVISION: Added Comment re: penetration and reference to People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235].
CJ 10.57 ANNOYING OR MOLESTING CHILDREN (PC 647.6(b), PC 647.6(c)(1), PC 647.6(c)(2))
INSTRUCTION REVISION: 2nd ¶, changed “felony conviction” to “felony.”
CJ 12.06 POSSESSION–NOT UNLAWFUL–BURDEN OF PROOF
INSTRUCTION REVISION: 3rd ¶, deleted bracket before “momentary.” Deleted 7th ¶ re: length of time of possession.
COMMENT REVISION: Added Comment re: comment is based on People v. Martin (2001) 25 C4th 1180 [108 CR2d 599]. Added reference to People v. Cole (88) 202 CA3d 1439 [249 CR 601] and People v. Mijares (71) 6 C3d 415 [99 CR 139].
CJ 12.09.1 MANUFACTURING OR OFFERING TO MANUFACTURE A CONTROLLED SUBSTANCE (HS 11379.6(a), HS 11379.6(b))
INSTRUCTION REVISION: Added 3rd ¶ re: the term “manufacture.”
USE NOTE REVISION: Added Use Note and reference to People v. Pierson (2001) 86 CA4th 983, 992 [103 CR2d 817].
CJ 12.54.1 CARRYING LOADED FIREARM–GANG MEMBER (PC 12031(a)(1)/(a)(2)(C))
INSTRUCTION REVISION: Added 8th ¶ defining loaded firearm. Modified Element 6 as follows [added language is capitalized:]
6. That person EITHER DIRECTLY AND ACTIVELY COMMITTED, OR aided and abetted [a] member[s] of that gang in committing the crime[s] of ____________.
USE NOTE REVISION: Added Use Note re: “primary activities” and reference to People v. Sengapadychith (2001) 26 C4th 316 [109 CR2d 851].
CJ 12.67 FELONY DRIVING UNDER THE INFLUENCE–PRIORS (VC 23153(a)/VC 23566/VC 23550.5)
INSTRUCTION REVISION: Changed reference in title from VC 23550 to VC 23566.
CJ 12.68 FELONY DRIVING WITH 0.08 PERCENT (VC 23153(b)/VC 23566/VC 23550.5)
INSTRUCTION REVISION: Changed reference in title from VC 23550 to VC 23566.
CJ 14.89 STRUCTURE–FOREST LAND–PROPERTY–INHABITED–DEFINED
COMMENT REVISION: Added Comment and reference to People v. Labaer (2001) 88 CA4th 289 [105 CR2d 629].
CJ 15.60 NEW INSTRUCTION — UNAUTHORIZED USE OF PERSONAL IDENTIFYING INFORMATION (PC 530.5). NOTE: NOTE: CALJIC failed to track the change in the statute in the January 2002 Pocket Part. For the correct instruction, see FORECITE F 15.60a.
CJ 16.145 SEXUAL BATTERY–DEFINED (PC 243.4(d))
USE NOTE REVISION: Added Use Note re: sua sponte instruction on PC 243.4(d) as lesser included offense.
CJ 16.310 UNAUTHORIZED USE OF PERSONAL IDENTIFYING INFORMATION [INSTRUCTION WITHDRAWN]
COMMENT REVISION: PC 530.5 is a felony. The correct instruction is now CJ 15.60.
CJ 16.447 UNLAWFUL PEEKING (PC 647(i))
INSTRUCTION REVISION: Changed by bracketing Elements 3 and 4 due to In re Joshua M. (2001) 91 CA4th 743 [110 CR2d 662] which was not final at press time. In re Joshua M. is final (review denied 11/14/2001). See FORECITE F 16.447a for a correct version of this instruction.
CJ 16.501 INTERFERENCE WITH CIVIL RIGHTS–DAMAGE TO PROPERTY (PC 422.6(b))
COMMENT REVISION: Added Comment re: ownership interest in the property and reference to In re Michael M. (2001) 86 CA4th 718 [104 CR2d 10].
CJ 16.890 FLIGHT FROM PURSUING PEACE OFFICER (VC 2800.1)
INSTRUCTION REVISION: Modified 2nd ¶ as follows [added language is capitalized; deleted language is between << >>:]
<<Every person who,>> A PERSON IS GUILTY OF A VIOLATION OF VEHICLE CODE SECTION 2800.1, A MISDEMEANOR, IF while operating a motor vehicle and with the specific intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer, and
Deleted 7th ¶ and incorporated it into the 2nd ¶.
CJ 17.16 PERSONAL USE OF DANGEROUS/DEADLY WEAPON (PC 12022(b)(1), PC 12022(b)(2))
INSTRUCTION REVISION: Modified 3rd ¶ as follows [added language is capitalized:]
“A deadly or dangerous weapon” means any weapon, instrument or object that is capable of being used to inflict greta bodily injury or death[.] [, AND IT CAN BE INFERRED FROM THE EVIDENCE, INCLUDING THE ATTENDANT CIRCUMSTANCES, NAMELY, THE TIME, [OR] PLACE, [DESTINATION OF THE POSSESSOR,] [THE ALTERATION, IF ANY, OF THE OBJECT FROM ITS STANDARD FORM,] AND ANY OTHER RELEVANT FACT, THAT THE POSSESSOR INTENDED ON THAT [OR THOSE] [OCCASION[S] TO USE IT AS A WEAPON SHOULD THE CIRCUMSTANCES SO REQUIRE.]
USE NOTE REVISION: Added Use Note re: expansion of definition of deadly or dangerous weapons. (See CJ 12.42 (1998 Rev.).
CJ 17.19.1 PERSONAL USE OF FIREARM OR DEADLY WEAPON–SEX CRIMES (PC 12022.3(a), (b), PC 12022.53(b))
INSTRUCTION REVISION: Modified 4th ¶. See CJ 17.16, above.
USE NOTE REVISION: Added Use Note re: expansion of definition of deadly or dangerous weapons. (See CJ 12.42 (1998 Rev.).
CJ 17.24.2 NEW INSTRUCTION — FELONIES COMMITTED FOR THE BENEFIT OF STREET GANGS (PC 186(b)(1))
