Effective March 15, 2019 the Judicial Council approved for publication revisions to the following CALCRIM instructions which were published in the March 2019 edition of the Judicial Council of California Criminal Jury Instructions.
| Instruction Number |
Instruction Title |
|
104, 202, 222 |
Evidence, Note-Taking and Read Back of Evidence |
|
301, 334, 335 |
Single Witness’s Testimony, Accomplice Testimony |
|
520 |
Murder: First and Second Degree |
|
625, 3426 |
Voluntary Intoxication |
|
707, 708 |
Special Circumstances: Accomplice Testimony |
|
NEW 1145 |
Possession of Matter Depicting Minor Engaged in Sexual Conduct |
|
1244 |
Causing Minor to Engage in Commercial Sex Act |
|
1650 |
Carjacking |
| 1900, 1901, 1902, 1904,
1905, 1930, 1932 & 1935 |
Forgery |
|
2140 |
Failure to Perform Duty Following Accident |
|
2300 |
Sale, Transportation for Sale, etc., of Controlled Substance |
|
2500 |
Possession of Illegal or Deadly Weapon |
|
2530
(984, 1161, 1162, 2966) |
Carrying Loaded Firearm
(& Brandishing, Lewd Conduct in Public, Disorderly Conduct) |
|
3181 |
Sex Offenses: Sentencing Factors – Multiple Victims |
|
3412 & 3413 |
Compassionate Use; Collective or Cooperative Cultivation Defense |
|
3454 |
Initial Commitment as Sexually Violent Predator |
Summary of Selected Revisions:
Evidence, Note-Taking, and Reading Back of Testimony (CC 104, CC 202, and CC 222)
At the request of a trial court judge, the committee added alternate language related to electronic recording. Some courts electronically record misdemeanor trials.
Murder, First and Second Degree (CC 520)
People v. Johnson (2016) 6 Cal.App.5th 505, 515–516 concluded trhat the duty to act section of CC 520 was confusing. This section informs the jury that: “If you conclude that the defendant owed a duty to [the victim], and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.” The Johnson court determined this language was confusing because the concept of negligence was not otherwise addressed in the instructions and may have caused the jury to conflate negligence with implied malice. In response, CALCRIM deleted the legal duty to act paragraph. Instead a failure to act was incorporated within the elements of the instruction itself and within the explanatory paragraphs that define implied malice and causation.
Voluntary Intoxication (CC 625 and 3426)
People v. Soto (2018) 4 Cal.5th 968, 970 held that evidence of voluntary intoxication is not admissible on the question of whether the defendant subjectively believed it was necessary to act in self-defense. CALCRIM added a bench note to reflect this holding.
Possession of Matter Depicting Minor Engaged in Sexual Conduct (Proposed NEW instruction — CC 1145)
PC 311.11, which prohibits possession of matter depicting a minor engaged in
sexual conduct is an offense that can be charged as either a felony or misdemeanor. Although CALCRIM has instructions for other child pornography–related offenses, it did not contain an instruction for this offense. Upon the request of a trial court judge, CALCRIM drafted a new instruction.
Carjacking (CC 1650)
People v. Cabrera (2007) 152 Cal.App.4th 695, 702–703 distinguished carjacking from robbery by holding that “carjacking is strictly a crime against possession rather than ownership. As such it is not subject to a claim of right defense.” However, the language in the carjacking instruction still referred to the taking of “a motor vehicle that was not (his/her) own” despite the Cabrera holding. Accordingly, CALCRIM deleted the ownership language and updated the authority section with two recent cases that address the use of force in the context of carjacking: People v. Hudson (2017) 11 Cal.App.5th 831, 837 and People
- Lopez (2017) 8 Cal.App.5th 1230, 1237.
Forgery (CC 1900, CC 1901, CC1902, CC 1904, CC 1905, CC 1930, CC 1932, and CC 1935)
Passed by the voters in 2014, Proposition 47 created new penalty allegations for forgery when committed with any of seven specified instruments and where the value of the forged instruments exceeds $950. See PC 473(b). In 2015, CALCRIM updated CC 1900 to incorporate the value requirement but did not modify the other affected forgery instructions. CALCRIM has now updated these forgery instructions to include the value requirement as well as to specify the seven types of instruments that qualify under PC 473(b). The committee also added the citation of People v. Gonzales (2018) 6 Cal.5th 44 in which the California Supreme Court addressed the scope of PC 473(b).
Sale, Transportation for Sale, etc., of Controlled Substance (CALCRIM No. 2300)
In People v. Lua (2017) 10 Cal.App.5th 1004, 1014–1016 [217 Cal.Rptr.3d 23], the court reviewed the adequacy of jury instructions in a prosecution for transporting drugs for sale, pursuant to HS (Health and Safety Code) section 11379. The Lua court noted, “Nevertheless, although CALCRIM No. 2300 tracks the language of section 11379, it is at best questionable whether, standing alone, the instruction adequately explains the specific intent element of the offense.” (Id. at 1016.) In response to this case, the committee added Lua to the authority section but did not alter the instruction. Since Lua, several unpublished opinions have reiterated the same concerns about whether this instruction goes far enough to convey the specific intent required in transportation for sale cases. In response to these continuing expressions of concern, the committee has now inserted an additional element addressing intent to be used in transportation for sale cases.
Carrying Loaded Firearm (CC 2530) with related revisions to CC 984, CC 1161, CC 1162, and CC 2966
PC 25850(a) prohibits carrying a loaded firearm in a public place or on a public
street. CC 2530 instructs the jury to determine whether the defendant was in a public place or on a public street but does not include a definition of public place. The committee added the definition of public place, as it currently appears in other instructions. The committee also updated the case law in the authority section for “Public Place Defined” by deleting some older cases and adding a more recent case (People v. Strider (2009) 177 Cal.App.4th 1393). This revision of “Public Place Defined” affected four other CALCRIM instructions: CC 984, CC 1161, CC 1162, and CC 2966. CALCRIM also made two other changes to CC 2530: (1) added People v. Wade (2016) 63 Cal.4th 137, 140 (holding that a loaded firearm in a backpack is “on the person”) to the authority section; and (2) deleted the taser section under related issues because the type of taser at issue in the cited case (People v. Heffner (1977) 70 Cal.App.3d 643, 652 is a defunct model that used gunpowder as a propellant. Since the late 1990s, tasers have been manufactured to use compressed nitrogen instead of gunpowder, and therefore no longer qualify as firearms.
Suggested Revision to CC 1145 Rejected:
One commentator suggested that the following should be placed in the “Bench Notes” or “Related Issues” section of that instruction: “A violation of Penal Code Section 311.11 may be proved by testimony only; i.e., the actual photos need not be produced. People v. Mendoza (2015) 240 Cal.App.4th 72.”
CALCRIM Rejected this suggestion because “the holding in People v. Mendoza is based on a substantial evidence determination. As such, the committee felt that its reasoning was not broadly applicable enough to include in the bench notes.”
FOR TEXT OF ALL THE REVISIONS SEE
https://jcc.legistar.com/View.ashx?M=F&ID=7058004&GUID=DE6D7F33-2B88-4024-AAFA-2E8CD267D70D
