FORECITE February 2013 CALCRIM Revisions
Please select the link below to download the February 2013 CALCRIM Revisions in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
February 2013 CALCRIM Revisions
FORECITE Critique And Comments*
49 instructions were included in the latest CALCRIM update. The report explaining the reasons for these changes [hereinafter “2/2013 Report”] may be found at:
http://www.courts.ca.gov/documents/jc-20130226-itemA.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. (But see footnote 1, below.) 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
A. 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 F 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 the 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.] (See, e.g., People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80 [subsequent revision by CALCRIM Committee helped persuade reviewing court that the original version of the instruction was erroneous].) [Footnote 1]
Review the FORECITE materials for the instructions given in your case for other potential appellate issues.
FOOTNOTE:
1. “Furthermore, the People (and Moore) overlook the fact that CALCRIM No. 358 was revised in 2008, after Moore’s trial in this case, and that the cautionary language at the end of the instruction now states: ‘Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.’ This revision reinforces our conclusion that the cautionary language in the prior version of CALCRIM No. 358 that was given to the jury in this case was erroneous.” (People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80. ALERT: DO NOT USE THIS QUOTE IN ANY COURT (Calif. Rules of Court 8.1115(a).) Unpublished opinions are not ordinarily citable in court. (See FORECITE PG I(I).)
Table of Contents
February 2013 CALCRIM Revisions*
CC 220 Reasonable Doubt (Revised February 2013)
CC 223 Direct and Circumstantial Evidence: Defined (Revised February 2013)
CC 224 Circumstantial Evidence: Sufficiency of Evidence (Revised February 2013)
CC 402 Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged) (Revised February 2013)
CC 520 First or Second Degree Murder With Malice Aforethought (PC 187) (Revised February 2013)
CC 521 First Degree Murder (PC 189) (Revised February 2013)
CC 524 Second Degree Murder: Peace Officer (PC 190(b), (c)) (Revised February 2013)
CC 560 Homicide: Provocative Act by Defendant (Revised February 2013)
CC 580 Involuntary Manslaughter: Lesser Included Offense (PC 192(b)) (Revised February 2013)
CC 601 Attempted Murder: Deliberation and Premeditation (PC 21a, 189, 664(a)) (Revised February 2013)
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC 21a, 192, 664) (Revised February 2013)
CC 733 Special Circumstances: Murder With Torture (PC 190.2(a)(18)) (Revised February 2013)
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death (PC 273a(a)) (Revised February 2013)
CC 823 Child Abuse (Misdemeanor) (PC 273a(b)) (Revised February 2013)
CC 860 Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Procedure Great Body Injury (PC 240, 245(c) & (d)) (Revised February 2013)
CC 862 Assault on Custodial Officer With Deadly Weapon or Force Likely to Procedure Great Body Injury (PC 240, 245, 245.3) (Revised February 2013)
CC 863 Assault on Transportation Personnel or Passenger With Deadly Weapon or Force Likely to Procedure Great Body Injury (PC 240, 245, 245.2) (Revised February 2013)
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)–(3), (b)) (Revised February 2013)
CC 925 Battery Causing Serious Bodily Injury (PC 242, 243(d)) (Revised February 2013)
CC 982 Brandishing Firearm or Deadly Weapon to Resist Arrest (PC 417.8) (Revised February 2013)
CC 983 Brandishing Firearm or Deadly Weapon: Misdemeanor (PC 417(a)(1) & (2)) (Revised February 2013)
CC 1000 Rape or Spousal Rape by Force, Fear, or Threats (PC 261(a)(2), (6) & (7)) (Revised February 2013)
CC 1060 Lewd or Lascivious Act: Dependent Person (PC 288(b)(2) & (c)(2)) (Revised February 2013)
CC 1110 Lewd or Lascivious Act: Child Under 14 Years (PC 288(a)) (Revised February 2013)
CC 1120 Continuous Sexual Abuse (PC 288.5(a)) (Revised February 2013)
CC 1125 Arranging Meeting With Minor for Lewd Purposes (PC 288.4(a)(1)) (Revised February 2013)
CC 1126 Going to Meeting With Minor for Lewd Purposes (PC 288.4(b)) (Revised February 2013)
CC 1127 Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or Younger (PC 288.7(a)) (Revised February 2013)
CC 1128 Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger (PC 288.7(b)) (Revised February 2013)
CC 1152 Child Procurement (PC 266j) (Revised February 2013)
CC 1170 Failure to Register as Sex Offender (PC 290(b)) (Revised February 2013)
CC 1191 Evidence of Uncharged Sex Offense (Revised February 2013)
CC 1200 Kidnapping: For Child Molestation (PC 207(b), 288(a)) (Revised February 2013)
CC 1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses (PC 209(b)) (Revised February 2013)
CC 1204 Kidnapping: During Carjacking (PC 207(a), 209.5(a), (b), 215(a)) (Revised February 2013)
CC 1400 Active Participation in Criminal Street Gang (PC 186.22(a)) (Revised February 2013)
CC 1401 Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1) (Felony) and PC 186.22(d) (Felony or Misdemeanor)) (Revised February 2013)
CC 1501 Arson: Great Bodily Injury (PC 451) (Revised February 2013)
CC 1502 Arson: Inhabited Structure (PC 451(b)) (Revised February 2013)
CC 1515 Arson (PC 451(b)) (Revised February 2013)
CC 1700 Burglary (PC 459) (Revised February 2013)
CC 1807 Theft From Elder or Dependent Adult (PC 368(d), (e)) (Revised February 2013)
CC 2160 Fleeing the Scene Following Accident: Enhancement for Vehicular Manslaughter (VC 20001(c)) (Revised February 2013)
CC 2503 Possession of Deadly Weapon With Intent to Assault (PC 17500) (Revised February 2013)
CC 2720 Assault by Prisoner Serving Life Sentence (PC 4500) (Revised February 2013)
CC 2900 Vandalism (PC 594) (Revised February 2013)
CC 3130 Cruelty to Animals (PC 597(a)) (Revised February 2013)
CC 3145 Voluntary Intoxication (PC 22) (Revised February 2013)
CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor (Revised February 2013)
POST-TRIAL: INTRODUCTORY
CC 220 Reasonable Doubt (Revised February 2013)
INSTRUCTION REVISION: Added reference to People v. Aranda (2012) 55 CA4th 342, 353 [cited with approval].
CC 223 Direct and Circumstantial Evidence: Defined (Revised February 2013)
INSTRUCTION REVISION: Added reference to People v. Livingston (2012) 53 CA4th 1145, 1166 [this instruction cited with approval].
CC 224 Circumstantial Evidence: Sufficiency of Evidence (Revised February 2013)
INSTRUCTION REVISION:> Added reference to People v. Livingston (2012) 53 CA4th 1145, 1166 [this instruction cited with approval].
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 402 Aiding and Abetting: Intended Crimes (Revised February 2013)
AUTHORITY REVISION: Deleted reference to People v. Hart (2009) 176 CA4th 662, 673 [court must properly instruct on mental state for nontarget crime].
FORECITE Commentary: See CC 402 Case Law.
HOMICIDE
CC 520 First or Second Degree Murder With Malice Aforethought (PC 187) (Revised February 2013)
INSTRUCTION REVISION: Modified last paragraph as follows [added language is underlined; deleted language is stricken]:
[If you decide that the defendant committed murder, you must then decide whether it is murder of the first or second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM No. _______ .]
FORECITE Commentary: 1. The language “If you decide . . .” fails to express te jurors’ duty in terms of the prosecution’s burden. CC 103 admonishes the jurors as follows: “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].”
There is no comparable instruction informing the jurors that “If you decide . . .” means “if the prosecution has proved beyond a reasonable doubt.” Accordingly, “If you decide that . . .” should be changed to “If you find beyond a reasonable doubt.”
2. The revised instruction fails to expressly require the jurors to find the defendant guilty of second degree murder. See CC Spring 2013 Invitation to Comment, pp. 6-14.
CC 521 First Degree Murder (PC 189) (Revised February 2013)
AUTHORITY REVISION: Modified last paragraph, 2nd sentence as follows [added language is underlined]:
People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder.
FORECITE Commentary: 1. The language “If you decide . . .” fails to express the jurors’ duty in terms of the prosecution’s burden. CC 103 admonishes the jurors as follows: “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].”
There is no comparable instruction informing the jurors that “If you decide . . .” means “if the prosecution has proved beyond a reasonable doubt.” Accordingly, “If you decide that . . .” should be changed to “If you find beyond a reasonable doubt.”
2. The revised instruction fails to expressly require the jurors to find the defendant guilty of second degree murder. See CC Spring 2013 Invitation to Comment, pp. 6-14.
CC 524 Second Degree Murder: Peace Officer (PC 190(b), (c)) (Revised February 2013)
INSTRUCTION REVISION: Modified Element 3 as follows [added language is underlined]:
3. The defendant (intended to kill the peace officer/ [or] intended to inflict great bodily injury on the peace officer/ [or] personally used a (deadly or dangerous weapon/ [or] firearm) in the commission of the offense).]
Modified 4th paragraph as follows:
[A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
Deleted 6th paragraph as follows:
[The term[s] (great bodily injury[,]/ deadly weapon[,]/ [and] firearm) (is/are) defined in another instruction to which you should refer.]
Changed “the Department of Fish and Game” to “the Department of Fish and Wildlife.”
BENCH NOTES REVISION – Instructional Duty: Deleted 4th paragraph as follows:
Give the relevant bracketed definitions unless the court has already given the definitions in other instructions. In such cases, the court may give the bracketed sentence stating that the term is defined elsewhere.
AUTHORITY REVISION: Modified as follows:
- Personally Used Deadly or Dangerous Weapon. Pen. Code, § 12022.
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 560 Homicide: Provocative Act by Defendant (Revised February 2013)
AUTHORITY REVISION: Added reference to People v. Baker-Riley (2012) 207 CA4th 631, 635–636 [this instruction upheld].
CC 580 Involuntary Manslaughter: Lesser Included Offense (PC 192(b)) (Revised February 2013)
INSTRUCTION REVISION: Modified Element 3 as follows [added language is underlined; deleted language is stricken]:
3. The defendant’s acts unlawfully caused the death of another person.
CC 601 Attempted Murder: Deliberation and Premeditation (PC 21a, 189, 664(a)) (Revised February 2013)
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph as follows [added language is underlined]:
When a charged attempted murder also forms the basis for a charge of provocative act murder, the court must take care to clarify that the defendant must have personally premeditated and deliberated an attempted murder in order to be convicted of first degree murder resulting from attempted murder under the provocative act doctrine. As described in CALCRIM No. 560, Homicide: Provocative Act by Defendant, the mental state for first degree murder under the provocative act murder doctrine requires that the defendant “personally premeditated and deliberated the attempted murder that provoked a lethal response.” (People v. Gonzalez (2012) 54 Cal.4th 643, 662 [142 Cal.Rptr.3d 893, 278 P.3d 1242].)
AUTHORITY REVISION: Added reference to People v. Favor (2012) 54 CA4th 868, 879 [attempted premeditated murder and the natural and probable consequences doctrine].
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC 21a, 192, 664) (Revised February 2013)
AUTHORITY REVISION: Added reference to People v. Lopez (2011) 199 CA4th 1297, 1307 [this instruction upheld].
CC 733 Special Circumstances: Murder With Torture (PC 190.2(a)(18)) (Revised February 2013)
AUTHORITY REVISION: Added reference to People v. Gonzales (2012) 54 CA4th 1234, 1278 [spatial and temporal nexus].
ASSAULTIVE AND BATTERY CRIMES
CC 821 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (PC 273.5(a)) (Revised February 2013)
INSTRUCTION REVISION: Added brackets to paragraph defining criminal negligence.
CC 823 Child Abuse (Misdemeanor) (PC 273a(b)) (Revised February 2013)
INSTRUCTION REVISION: Added brackets to paragraph defining criminal negligence.
CC 860 Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Procedure Great Body Injury (PC 240, 245(c) & (d)) (Revised February 2013)
INSTRUCTION REVISION: Modified paragraph defining “deadly weapon” as follows [added language is underlined; deleted language is stricken]:
[A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
Changed “the Department of Fish and Game” to “the Department of Fish and Wildlife.”
AUTHORITY REVISION: Added reference to People v. Brown (2012) 210 CA4th 1, 6-8 [deadly weapon defined].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 862 Assault on Custodial Officer With Deadly Weapon or Force Likely to Procedure Great Body Injury (PC 240, 245, 245.3) (Revised February 2013)
INSTRUCTION REVISION: Modified paragraph defining “deadly weapon” as follows [added language is underlined; deleted language is stricken]:
[A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
AUTHORITY REVISION: Added reference to People v. Brown (2012) 210 CA4th 1, 6-8 [deadly weapon defined].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 863 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised February 2013)
INSTRUCTION REVISION: See CC 862, above, re: “deadly weapon.”
AUTHORITY REVISION: See CC 862, above.
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 875 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised February 2013)
INSTRUCTION REVISION: See CC 862, above, re: “deadly weapon.”
AUTHORITY REVISION: See CC 862, above.
LESSER INCLUDED OFFENSES REVISION: Added reference to People v. Martinez (2012) 208 CA4th 197, 199 [assault with a firearm is a lesser included offense of assault with a semiautomatic firearm].
CC 925 Battery Causing Serious Bodily Injury (PC 242, 243(d)) (Revised February 2013)
AUTHORITY REVISION: Added reference to People v. Wade (2012) 204 CA4th 1142, 1148-1150 [medical treatment not an element].
CC 982 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised February 2013)
INSTRUCTION REVISION: See CC 862, above, re: “deadly weapon.” Changed “the Department of Fish and Game” to “the Department of Fish and Wildlife.”
AUTHORITY REVISION: See CC 862, above.
CC 983 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised February 2013)
INSTRUCTION REVISION: See CC 862, above, re: “deadly weapon.”
AUTHORITY REVISION: See CC 862, above.
SEX OFFENSES
CC 1000 Rape or Spousal Rape by Force, Fear, or Threats (PC 261(a)(2), (6) & (7)) (Revised February 2013)
INSTRUCTION REVISION: Added reference to People v. Smith (2010) 191 CA4th 199, 204-205 [instruction upheld].
LESSER INCLUDED OFFENSES REVISION: Modified last paragraph, 1st sentence [Defense: Reasonable Belief in Consent] as follows [added language is underlined]:
[The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse].
BENCH NOTES REVISION – Instructional Duty:
Added 4th paragraph as follows:
The defendant must continue to actually and reasonably believe in the victim’s consent throughout the act. If the act of intercourse begins consensually and the victim then changes her mind, the victim must clearly and unequivocally communicate to the defendant her withdrawal of consent to the act. If, however, the defendant initiates the use of nonconsensual duress, menace, or force during the act, the victim’s subsequent withdrawal of consent to the act may be inferred from the circumstances and need not be expressed. (People v. Ireland (2010) 188 Cal.App.4th 328, 338 [114 Cal.Rptr.3d 915]). If there is an issue regarding the defendant’s continued belief in the victim’s consent, give the second optional first sentence in the definition of “Defense: Reasonable Belief in Consent.”
AUTHORITY REVISION – Rape: Added reference to People v. Ireland (2010) 188 CA4th 328, 33 [inferring lack of consent from circumstances].
FORECITE Commentary: The instruction does not provide the jurors with adequate guidance. See Spring 2013 Invitation to Comment, pp. 18-21.
CC 1060 Lewd or Lascivious Act: Dependent Person (PC 288(b)(2) & (c)(2)) (Revised February 2013)
INSTRUCTION REVISION: Modified 3rd paragraph as follows [deleted language is stricken]:
A lewd or lascivious act is any touching of a person with the intent to sexually arouse the perpetrator or the other person. The touching need not be done in a lewd or sexual manner. A lewd or lascivious act includes . . .
CC 1110 Rape of a Disabled Woman (PC 261(a)(1)) (Revised February 2013)
INSTRUCTION REVISION: Deleted 3rd paragraph as follows [deleted language is stricken]:
The touching need not be done in a lewd or sexual manner.
BENCH NOTES REVISION – Instructional Duty: Changed page citation reference re: People v. Soto (2011) 51 Cal.4th 229, from page 232 to page 233.
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1120 Continuous Sexual Abuse (PC 288.5(a)) (Revised February 2013)
INSTRUCTION REVISION: 5th paragraph, 2nd sentence, deleted as follows [deleted language is stricken]:
The touching need not be done in a lewd or sexual manner.
AUTHORITY REVISION: Added reference to People v. Cuellar (2012) 208 CA4th 1067, 1070–1072 [necessary intent in touching].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1125 Arranging Meeting With Minor for Lewd Purposes (PC 288.4(a)(1)) (Revised February 2013)
INSTRUCTION REVISION: 5th paragraph, 2nd sentence, deleted as follows [deleted language is stricken]:
The touching need not be done in a lewd or sexual manner.
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1126 Going to Meeting With Minor for Lewd Purposes (PC 288.4(b)) (Revised February 2013)
INSTRUCTION REVISION: Replace 3rd paragraph and modified paragraph defining a minor as follows [added language is underlined; deleted language is stricken]:
minor is a person under the age of 18.
[For the purposes of this instruction,] A/a) child or minor is a person under the age of 18.
Modified 6th (formerly 5th) paragraph, 2nd sentence, as follows:
The touching need not be done in a lewd or sexual manner.
AUTHORITY REVISION: Added reference to People v. Yuksel (2012) 207 CA4th 850, 854-855 [meaning of child and minor].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1127 Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or Younger (PC 288.7(a)) (Revised February 2013)
INSTRUCTION REVISION: Modified first paragraph as follows [deleted language is stricken]:
The defendant is charged [in Count ] with engaging in (sexual intercourse/ [or] sodomy) with a child under 10 years of age or younger [in violation of Penal Code section 288.7(a)].
AUTHORITY REVISION Re: CALCULATING AGE: Added reference to People v. Cornett (2012) 53 CA4th 1261, 1264, 1275 [“10 years of age or younger” means “under 11 years of age”].
CC 1128 Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger (PC 288.7(b)) (Revised February 2013)
INSTRUCTION REVISION: Modified first paragraph as follows [deleted language is stricken]:
The defendant is charged [in Count ] with engaging in (oral copulation/ [or] sexual penetration) with a child under10 years of age or younger [in violation of Penal Code section 288.7(b)]
.
AUTHORITY REVISION Re: CALCULATING AGE: Added reference to People v. Cornett (2012) 53 CA4th 1261, 1264, 1275 [“10 years of age or younger” means “under 11 years of age”].
CC 1152 Child Procurement (PC 266j) (Revised February 2013)
INSTRUCTION REVISION: Modified 3rd paragraph, 2nd sentence, as follows [deleted language is stricken]:
A lewd or lascivious act is any touching of a child with the intent to sexually arouse either the perpetrator or the child. The touching need not be done in a lewd or sexual manner. Contact with the child’s bare skin or private parts is not required.
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1170 Failure to Register as Sex Offender (PC 290(b)) (Revised February 2013)
AUTHORITY REVISION Re: Defendant Must Have Actual Knowledge That Location is Residence for Purpose of Duty to Register: Deleted reference to People v. Cohens (2009) 178 CA4th 1442, 1451; added reference to People v. Aragon (2012) 207 CA4th 504, 510.
CC 1191 Evidence of Uncharged Sex Offense (Revised February 2013)
AUTHORITY REVISION: Added reference to People v. Villatoro (2012) 54 CA4th 1152, 1161 [charged offenses proved beyond a reasonable doubt may be evidence of propensity].
KIDNAPPING
CC 1200 Kidnapping: For Child Molestation (PC 207(b), 288(a)) (Revised February 2013)
INSTRUCTION REVISION: Modified 3rd paragraph, 2nd sentence, as follows [deleted language is stricken]:
The movement must have substantially increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the molestation.
Modified 4th paragraph, 2nd sentence as follows:
The touching does not need to be done in a lewd or sexual manner.
AUTHORITY REVISION: Deleted paragraph and added paragraph as follows [added language is underlined; deleted language is stricken]:
Substantial Distance Requirement. See People v. Derek Daniels (1993) 18 Cal.App.4th 1046, 1053 [22 Cal.Rptr.2d 877]; People v. Stanworth (1974) 11 Cal.3d 588, 600–601 [114 Cal.Rptr. 250, 522 P.2d 1058].
Movement of Victim Need Not Substantially Increase Risk of Harm to Victim. People v. Robertson (2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses (PC 209(b)) (Revised February 2013)
INSTRUCTION REVISION: Modified 3rd paragraph, 2nd sentence, as follows [deleted language is stricken]:
The movement must have substantially increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the (robbery/ [or] rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual penetration/[or] _______ <insert other offense specified in statute>).
AUTHORITY REVISION RE: Distance of Movement: Modified as follows:
• Movement Must of Victim Need Not Substantially Increase Risk of Harm to Victim. People v. Dominguez (2006) 39 Cal.4th 1141, 1153 [47 Cal.Rptr.3d 575, 140 P.3d 86
Robertson (2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66]; People v. Vines (2011) 51 Cal.4th 830, 870 fn. 20 [124 Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez (1999) 20 Cal.4th 225, 232 fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512].
CC 1204 Kidnapping: During Carjacking (PC 207(a), 209.5(a), (b), 215(a)) (Revised February 2013)
INSTRUCTION REVISION: Modified 9th paragraph, 3rd sentence as follows [deleted language is stricken]:
The movement must also have substantially increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the carjacking.
AUTHORITY REVISION RE: Distance of Movement: Modified as follows:
• Substantial Distance Requirement. People v.Movement Need Not Substantially Increase Risk of Harm. People v. Robertson (2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66]; People v. Ortiz (2002) 101 Cal.App.4th 410 [124 Cal.Rptr.2d 92]; People v. Daniels (1993) 18 Cal.App.4th 1046, 1053 [22 Cal.Rptr.2d 877] Pen Code § 209.5(a).
CRIMINAL STREET GANGS
CC 1400 Active Participation in Criminal Street Gang (PC 186.22(a)) (Revised February 2013)
INSTRUCTION REVISION: Modified note re: primary activity (predicate offenses) as follows [added language is underlined; deleted language is stricken]:
<Give this paragraph only when the conduct that establishes the primarypattern of criminal gang activity,i.e., predicate offenses, has not resulted in a conviction or sustained juvenile petition.>
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 1401 Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1) (Felony) and PC 186.22(d) (Felony or Misdemeanor)) (Revised February 2013)
INSTRUCTION REVISION: See CC 1400, above.
ARSON
CC 1501 Arson: Great Bodily Injury (PC 451) (Revised February 2013)
BENCH NOTES REVISION – Instructional Duty: Deleted 2nd paragraph as follows [deleted language is stricken]:
If the prosecution’s theory is that the defendant did not set the fire but “counseled,” “helped,” or “caused” the fire, the court has a sua sponte duty to instruct on aiding and abetting. (People v. Sarkis (1990) 222 Cal.App.3d 23, 28 [272 Cal.Rptr. 34].) See CALCRIM Nos. 400–403.
CC 1502 Arson: Inhabited Structure (PC 451(b)) (Revised February 2013)
BENCH NOTES REVISION – Instructional Duty: See CC 1501, above.
CC 1515 Arson (PC 451(b)) (Revised February 2013)
BENCH NOTES REVISION – Instructional Duty: See CC 1501, above.
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1700 Burglary (PC 459) (Revised February 2013)
INSTRUCTION REVISION: Added 9th paragraph as follows [added language is underlined]:
[An attached balcony designed to be entered only from inside of a private, residential apartment on the second or higher floor of a building is inside a building’s outer boundary.]
BENCH NOTES REVISION – Instructional Duty: Added 7th paragraph as follows:
Whenever a private, residential apartment and its balcony are on the second or higher floor of a building, and the balcony is designed to be entered only from inside the apartment, that balcony is part of the apartment and its railing constitutes the apartment’s “outer boundary.” (People v. Yarbrough (2012) 54 Cal.4th 889, 894 [144 Cal.Rptr.3d 164, 281 P.3d 68].)
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
THEFT AND EXTORTION
CC 1807 Theft From Elder or Dependent Adult (PC 368(d), (e)) (Revised February 2013)
INSTRUCTION REVISION: Added notation after Element 2 and modified Element 3 as follows [added language is underlined; deleted language is stricken]:
< Do not give element 3 in misdemeanor cases where the value is $950 or less. >
3. [The property, goods, or services obtained was worth (more than $950/$950 or less) $950;]
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows:
In element 3, if If the defendant is charged with taking property valued at more than $950 (see Pen. Code, § 368(d), (e)), give the phrase “more than $950.” element 3. (See Pen. Code, § 368(d), (e).) Otherwise, give the phrase “$950 or less.”
VEHICLE OFFENSES
CC 2160 Fleeing the Scene Following Accident: Enhancement for Vehicular Manslaughter (VC 20001(c)) (Revised February 2013)
INSTRUCTION REVISION: Modified 6th paragraph as follows [added language is underlined; deleted language is stricken]:
2. The defendant willfully failed to immediately stop at fled the scene of the accident.
Deleted 4th paragraph as follows:
The duty to immediately stop means that the driver must stop his or her vehicle as soon as reasonably possible under the circumstances.
BENCH NOTES REVISION – Instructional Duty: Deleted 4th paragraph:
The court must determine whether to apply this enhancement only to individuals who personally commit the vehicular manslaughter. A depublished case would have precluded giving this instruction if the People allege that the defendant aided and abetted but did not personally commit the manslaughter. (People v. Calhoun (2004) 123 Cal.App.4th 1031, 1044 [24 Cal.Rptr.3d 865, 106 P.3d 304], review granted and depublished, Nov. 2, 2004, D042645.)
AUTHORITY REVISION: Deleted and added the following:
• Immediately Stopped Defined. People v. Odom (1937) 19 Cal.App.2d 641, 646–647 [66 P.2d 206].
• Fleeing Scene of Accident. People v. Vela (2012) 205 Cal.App.4th 942, 950 [140 Cal.Rptr.3d 755].
• First Element of This Instruction Cited With Approval. People v. Nordberg (2010) 189 Cal.App.4th 1228, 1238 [117 Cal.Rptr.3d 558].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
WEAPONS
CC 2503 Possession of Deadly Weapon With Intent to Assault (PC 17500) (Revised February 2013)
INSTRUCTION REVISION: Modified 4th paragraph, 1st sentence as follows [deleted language is stricken]:
[A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
AUTHORITY REVISION: Added reference to People v. Brown (2012) 210 CA4th 1, 6-8 [deadly weapon defined].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CRIMES AGAINST GOVERNMENT
CC 2720 Assault by Prisoner Serving Life Sentence (PC 4500) (Revised February 2013)
INSTRUCTION REVISION: Modified item 2 re: implied malice as follows [added language is underlined]:
2. The natural and probable consequences of the act were dangerous to human life.
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2900 Vandalism (PC 594) (Revised February 2013)
AUTHORITY REVISION: Added reference to People v. Kurtenbach (2012) 204 CA4th 1264, 1282 [wrongful act need not be directed at victim].
ENHANCEMENTS AND SENTENCING FACTORS
CC 3130 Personally Armed With Deadly Weapon (PC 12022.3) (Revised February 2013)
INSTRUCTION REVISION: Modified 2nd paragraph as follows [deleted language is stricken]:
A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
AUTHORITY REVISION: Added reference to People v. Brown (2012) 210 CA4th 1, 6-8 [deadly weapon defined].
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
CC 3145 Personally Used Deadly Weapon (PC 667.61(e)(3), 1192.7(c)(23), 12022(b)(1), 12022.3) (Revised February 2013)
TITLE REVISION: Changed reference from “(Pen. Code,§§ 667.61(e)(4)” to “(Pen. Code,§§ 667.61(e)(3).”
INSTRUCTION REVISION: Modified 2nd paragraph as follows [added language is underlined]:
A deadly [or dangerous] weapon is any object, instrument, or weapon that is inherently deadly [or dangerous] or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
AUTHORITY REVISION: Changed reference from PC 667.61(e)(4) to PC 667.61(e)(3).
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
DEFENSES AND INSANITY
CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor (Revised February 2013)
INSTRUCTION REVISION: Modified first paragraph as follows [added language is underlined]:
A person who (engages in mutual combat/ [or who] starts a fight) has a right to self-defense only if:
FORECITE Commentary: 1. Appellate Update: This revision corrects an instructional deficiency identified by the CALCRIM Committee. Therefore, for cases in which the jurors received the unrevised version of the instruction, the instructional deficiency may be a potentially meritorious appellate issue. (See § III(B), above.)
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