FORECITE October 2010 CALCRIM Revisions
Please select the link below to download the October 2010 CALCRIM Revisions in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
October 2010 CALCRIM Revisions
FORECITE Critique And Comments*
On October 29, 2010, the Judicial Council approved the most recent set of revisions. There were no new instructions. The report explaining the reasons for these changes may be found at:
http://www.courtinfo.ca.gov/jc/documents/reports/20101029itema20.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
October 2010 CALCRIM Revisions*
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (Revised February 2012)
CC 520 First- or Second-Degree Murder With Malice Aforethought (PC 187) (Revised)
CC 521 Murder: Degrees (PC 189) (Revised)
CC 593 Misdemeanor Vehicular Manslaughter (PC192(c)(2)) (Revised)
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC 21a, 192, 664) (Revised)
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death (PC 273a(a)) (Revised)
CC 823 Child Abuse (Misdemeanor) (PC 273a(b)) (Revised)
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)-(3)) (Revised)
CC 890 Assault With Intent to Commit Specified Crimes [While Committing First Degree Burglary] (PC 220(a), (b)) (Revised)
CC 945 Battery Against Peace Officer (PC 242, 243(b), (c)(2)) (Revised)
CC 983 Brandishing Firearm or Deadly Weapon: Misdemeanor (PC 417(a)(1) & (2)) (Revised)
CC 1170 Failure to Register as Sex Offender (PC 290(b)) (Revised)
CC 1180 Incest (PC 285) (Revised)
CC 1215 Kidnapping (PC 207(a)) (Revised)
CC 1600 Robbery (PC 211)
CC 1700 Burglary (PC 459) (Revised)
CC 1750 Receiving Stolen Property (PC 496(a)) (Revised)
CC 1806 Theft by Embezzlement (PC 484, 503) (Revised)
CC 1862 Return of Property Not a Defense to Theft (PC 512, 513) (Revised)
CC 1863 Defense to Theft or Robbery: Claim of Right (PC 511) (Revised)
CC 2140 Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver (VC 20001, 20003 & 20004) (Revised)
CC 2141 Failure to Perform Duty Following Accident: Death or Injury—Defendant Nondriving Owner or Passenger in Control (VC 20001, 20003 & 20004) (Revised)
CC 2300 Sale, Transportation, etc., of Controlled Substance (HS 11352, 11379) (Revised)
CC 2302 Possession for Sale of Controlled Substance (HS 11351, 11351.5, 11378, 11378.5) (Revised)
CC 2303 Possession of Controlled Substance While Armed With Firearm (HS 11370.1) (Revised)
CC 2304 Simple Possession of Controlled Substance (HS 11350, 11377) (Revised) 2321. Forged Prescription for Narcotic: With Possession of Drug (HS 11368) (Revised)
CC 2350 Sale, Furnishing, etc., of Marijuana (HS 11360(a)) (Revised)
CC 2352 Possession for Sale of Marijuana (HS 11018, 11359) (Revised)
CC 2360 Transporting or Giving Away Marijuana: Not More Than 285 Grams—Misdemeanor (HS 11360(b)) (Revised)
CC 2361 Transporting or Giving Away Marijuana: More Than 285 Grams (HS 11360(a)) (Revised)
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS 11357(c)) (Revised)
CC 2376 Simple Possession of Marijuana on School Grounds: Misdemeanor (HS 11357(d)) (Revised)
CC 2380 Sale, Furnishing, etc., of Controlled Substance to Minor (HS 11353, 11354, 11380(a)) (Revised)
CC 2390 Sale, Furnishing, etc., of Marijuana to Minor (HS 11361) (Revised)
CC 2410 Possession of Controlled Substance Paraphernalia (HS 11364) (Revised)
CC 2440 Maintaining a Place for Controlled Substance Sale or Use (HS 11366) (Revised)
CC 2748 Possession of Controlled Substance or Paraphernalia in Penal Institution (PC 4573.6) (Revised)
CC 3450 Insanity: Determination, Effect of Verdict (PC 25, 25.5) (Revised)
CC 3516 Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited (Revised)
CC 3550 Pre-Deliberation Instructions (Revised)
PRETRIAL
CC 101 Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected) (Revised October 2010)
INSTRUCTION REVISION: Modified title to add “During”; modified 2nd paragraph, last sentence as follows [added language is underlined; deleted language is stricken]:
You must not talk about these things with the other jurors either, until the time comes for you to begin your deliberations deliberating.
Modified 7th paragraph, first sentence, as follows:
During the trial, do not speak to any party a defendant, witness, or lawyer involved in the trial or anyone associated with them.
Deleted 10th paragraph as follows:
Some words or phrases that may be used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in the instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings.
Other insignificant changes.
FORECITE Commentary: See FORECITE F 101.2 Inst 1, F 101.2 Inst 2, F 101.2 Inst 3, F 101.2 Inst 4, and F 101.4 Inst 1.
HOMICIDE
CC 520 First- or Second-Degree Murder With Malice Aforethought (PC 187) (Revised October 2010)
INSTRUCTION REVISION: Modified title to add “First- or Second-Degree”; added the last four paragraphs as follows [added language is underlined]:
<Give the following bracketed paragraph if the second degree is the only possible degree of the crime for which the jury may return a verdict>
[If you find the defendant guilty of murder, it is murder of the second degree.]
<Give the following bracketed paragraph if there is substantial evidence of first-degree murder>
[If you decide that the defendant committed murder, you must then decide whether it is murder of the first or second degree].
BENCH NOTES REVISION – Instructional Duty: 2nd paragraph, added last sentence concerning superseding or intervening cause and reference to CC 620. Deleted the “Related Instructions” title.
FORECITE Commentary: See FORECITE F 520.3 Inst 3.
CC 521 Murder: Degrees First-Degree Murder (PC 189) (Revised October 2010)
INSTRUCTION REVISION: Modified title; deleted first paragraph as follows [added language is underlined; deleted language is stricken]:
If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.
Modified the judge’s instruction paragraph as follows:
<Select the appropriate section[s]. Give the final two paragraphs in every case.>
Deleted the 2nd and 3rd to last paragraphs and added 2nd to last paragraph as follows:
<GIVE FINAL TWO PARAGRAPHS IN EVERY CASE.>
All other murders are of the second degree.
[The requirements for second degree murder based on express or implied malice are explained in CALCRIM No. 520, First or Second Degree Murder With Malice Aforethought.]
BENCH NOTE REVISION – Instructional Duty: Modified 2nd paragraph as follows:
The court must give the final two paragraphs in every case.
FORECITE Commentary: By cross-referencing to another instruction the new version of CC 521 may require that the instruction titles and numbers be included on the written instructions given to the jurors. (See FORECITE F 200.1.2 Note 2.) Furthermore, the jurors will not be able to follow the oral rendition of the instructions unless the titles and numbers are included.
CC 593 Misdemeanor Vehicular Manslaughter (PC 192(c)(2)) (Revised October 2010)
INSTRUCTION REVISION: Added judge’s instruction paragraph to and modified Element 1 as follows [added language is underlined; deleted language is stricken]:
<If the court concludes that negligence must be established only for a “lawful act, committed in an unlawful manner,” and not for a misdemeanor or infraction (see Bench Notes), give the following:>
1. While (driving a vehicle/operating a vessel), the defendant committed (a misdemeanor[,]/ [or] an infraction[,]/ [or] an otherwise lawful act with ordinary negligence);
Added the following after Element 3:
<If the court concludes that negligence must be established for a misdemeanor or infraction, as well as for a “lawful act, committed in an unlawful manner,” give the following:>
1. While (driving a vehicle/operating a vessel), the defendant committed (a misdemeanor[,]/ [or] an infraction/ [or] a lawful act in an unlawful manner);
2. The (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act) was dangerous to human life under the circumstances of its commission;
3. The defendant committed the (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act) with ordinary negligence.
AND
4. The (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act) caused the death of another person.
BENCH NOTES REVISION – Instructional Duty: Added 5th paragraph concerning ambiguous authority relating to application and references to People v. Wells (1996) 12 C4th 979, 987, People v. Burroughs (1984) 35 C3d 824, 835, overruled on other grounds in People v. Blakeley (2000) 23 C4th 82, 89, In re Dennis B. (1976) 18 C3d 687, 696, People v. Mitchell (1946) 27 C2d 678, 683–684, People v. Pearne (1897) 118 C154, and People v. Thompson (2000) 79 CA4th 40, 53.
FORECITE Commentary: See FORECITE F 593.2 Inst 1.
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense – Lesser Included Offense (PC 21a, 192, 664) (Revised October 2010)
INSTRUCTION REVISION: Modified Element 5 as follows [added language is underlined; deleted language is stricken]:
5. TAt least one of the defendant’s beliefs were was unreasonable.
FORECITE Commentary: This corrects an error that was previously identified in FORECITE F 604 Inst 1.
ASSAULTIVE AND BATTERY CRIMES
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death (PC 273a(a)) (Revised October 2010)
INSTRUCTION REVISION: Modified Alternative D, Element 1, as follows [added language is underlined; deleted language is stricken]:
[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 might have was been endangered;]
Modified the paragraphs defining “likely to produce (great bodily harm/ [or] death)” as follows:
The phrase likely to produce (great bodily harm/ [or] death) means the probability of serious injury is great (great bodily harm/ [or] death) is high.
Moved the paragraph defining “great bodily harm.”
Modified the elements defining “Criminal negligence” as follows:
[Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:
1. He or she acts in a reckless way that creates is a high risk of death or great bodily harm; gross departure from the way an ordinarily careful person would act in the same situation;
2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts;
AND
3. A reasonable person would have known that acting in that way would naturally and probably create such a risk result in harm to others.
In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.]
FORECITE Commentary: This revision provides support for the view that elemental definitions should be incorporated into the enumerated elements of the charge. (See FORECITE F 417.5 Inst 2.)
CC 823 Child Abuse (Misdemeanor) (PC 273a(b)) (Revised October 2010)
INSTRUCTION REVISION: Modified Alternative 1D, Element 1, as follows [added language is underlined; deleted language is stricken]:
[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 might have was been endangered;]
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)–(3), (b)) (Revised October 2010)
INSTRUCTION REVISION: Modified first paragraph and Alternative 1A Elements as follows [added language is underlined]:
The defendant is charged [in Count ] with assault with (force likely to produce great bodily injury/a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) [in violation of Penal Code section 245].
To prove that the defendant is guilty of this crime, the People must prove that:
<Alternative 1A—force with weapon>
[1. The defendant did an act with (a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) that by its nature would directly and probably result in the application of force to a person;]
Modified Alternative 1B Element 4 as follows:
4. When the defendant acted, (he/she) had the present ability to apply force (likely to produce great bodily injury/with a deadly weapon other than a firearm/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle) to a person(;/.)
Modified paragraph defining “deadly weapon” as follows:
[A deadly weapon other than a firearm 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.]
Modified last paragraph as follows:
[The term[s] (great bodily injury[,]/ deadly weapon other than a firearm[,]/ firearm[,]/ machine gun[,]/assault weapon[,]/ [and] .50 BMG rifle) (is/are) defined in another instruction to which you should refer.]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows:
Give element 1A if it is alleged the assault was committed with a deadly weapon other than a firearm, firearm, semiautomatic firearm, machine gun, an assault weapon, or .50 BMG rifle. Give 1B if it is alleged that the assault was committed with force likely to produce great bodily injury. (See Pen. Code, § 245(a).)
AUTHORITY REVISION: Added reference to People v. Golde (2008) 163 CA4th 101, 122-123 [instruction affirmed] and moved reference to People v. Rodriguez (1999) 20 C4th1, 11, fn. 3 [to have present ability to inflict injury, gun must be loaded unless used as club or bludgeon].
CC 890 Assault With Intent to Commit Specified Crimes [While Committing First-Degree Burglary] (PC 220(a), (b)) (Revised October 2010)
INSTRUCTION REVISION: Modified 5th paragraph as follows [added language is underlined; deleted language is stricken]:
[ ________ and f[First-degree burglary are is defined in other another instructions to which you should refer.]
Added last paragraph as follows:
To decide whether the defendant intended to commit _________ <insert crime specified in PC 220(a)> please refer to Instruction[s] ______ which define[s] (that/those) crime[s].
FORECITE Commentary: By cross-referencing to another instruction the new version of CC 890 may require that the instruction titles and numbers be included on the written instructions given to the jurors. (See FORECITE F 200.1.2 Note 2.) Furthermore, the jurors will not be able to follow the oral rendition of the instructions unless the titles and numbers are included.
CC 945 Battery Against Peace Officer (PC 242, 243(b), (c)(2)) (Revised October 2010)
INSTRUCTION REVISION: Deleted last two paragraphs concerning “lawful performance” as follows [deleted language is stricken]:
<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Offıcer.>
[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph, 2nd to last sentence, as follows:
If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Offıcer.
CC 983 Brandishing Firearm or Deadly Weapon: Misdemeanor (PC 417(a)(1) & (2)) (Revised October 2010)
INSTRUCTION REVISION: Modified Element 1 as follows [deleted language is stricken]:
1. The defendant drew or exhibited a (firearm/deadly weapon)in the immediate presence of someone else;
FORECITE Commentary: See FORECITE F 983.2 Inst 1.
SEX OFFENSES
CC 1170 Failure to Register as Sex Offender (PC 290(b)) (Revised October 2010)
INSTRUCTION REVISION: Added last paragraph defining “residence” as follows [added language is underlined]:
[Residence means one or more addresses where someone regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address. A residence may include, but is not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.]
AUTHORITY REVISION: Added reference to People v. Gonzales (2010) 183 CA4th 24, 35 and PC 290.011(g) [definition of residence].
FORECITE Commentary: See FORECITE F 1170.6 Inst 2.
CC 1180 Incest (PC 285) (Revised October 2010)
INSTRUCTION REVISION: Added Element 3 and 4 as follows [added language is underlined]:
3. When the defendant did so, the other person was at least 14 years old;
AND
3 4. The defendant and the other person are related to each other as (parent and child/[great-]grandparent and [great-]grandchild/[half] brother and [half] sister/uncle and niece/aunt and nephew).
FORECITE Commentary: See FORECITE F 1180.5 Inst 2.
KIDNAPPING
CC 1215 Kidnapping (PC 207(a)) (Revised October 2010)
INSTRUCTION REVISION: Modified 4th and deleted 5th and 6th paragraphs as follows [added language is underlined; deleted language is stricken]:
[Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. [Thus, in addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of ________ <insert associated crime>], whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]
[The defendant is also charged in Count with ________ . In order for the defendant to be guilty of kidnapping, the other person must be moved or made to move a distance beyond that merely incidental to the commission of <insert crime>.]
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows:
The court must give the bracketed paragraph that begins with “The defendant is also charged”must be given on request when an language on movement incidental to an associated crime when it is charged supported by the evidence. (See People v. Martinez, supra, 20 Cal.4th at pp. 237–238.) See also Commentary to CALCRIM No. 1203, Kidnapping: For Robbery, Rape, or Other Sex Offenses. p. 237; People v. Bell (2009) 179 Cal.App.4th 428, 439 [102 CR3d 300].)
FORECITE Commentary: CALCRIM’s revision is primarily based on People v. Bell (2009) 179 CA4th 428, 440-41. (See http://www.courtinfo.ca.gov/jc/documents/reports/20101029itema20.pdf.) However, until the matter is expressly resolved by the California Supreme Court counsel should continue to request that movement for a substantial distance be included as an element of the charge.
ROBBERY AND CARJACKING
CC 1600 Robbery (PC 211) (Revised October 2010)
INSTRUCTION REVISION: Added 4th and 5th paragraph as follows [added language is underlined]:
<Give the following bracketed paragraph if the second degree is the only possible degree of the charged crime for which the jury may return a verdict.>
[If you find the defendant guilty of robbery, it is robbery of the second degree.]
BENCH NOTES REVISION – Instructional Duty: Added 4th paragraph as follows:
If second degree robbery is the only possible degree of robbery that the jury may return as their verdict, do not give CALCRIM No. 1602, Robbery: Degrees.
RELATED ISSUES REVISION – Force—Amount: Modified citation to People v. Mosby (2004) 33 C4th 353, 365 adding reference to fns. 2 and 3.
FORECITE Commentary: See FORECITE F 1602.2 Inst 1.
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1700 Burglary (PC 459) (Revised October 2010)
INSTRUCTION REVISION: Added 4th and 5th paragraph as follows [added language is underlined]:
<Give the following bracketed paragraph if the second degree is the only possible degree of the charged crime for which the jury may return a verdict.>
[If you find the defendant guilty of burglary, it is burglary of the second degree.]
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph as follows:
If second degree burglary is the only possible degree of burglary that the jury may return as their verdict, do not give CALCRIM No. 1701, Burglary: Degrees.
FORECITE Commentary: See FORECITE F 1701.2 Inst 2.
CC 1750 Receiving Stolen Property (PC 496(a)) (Revised October 2010)
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
If the defendant is also charged with a theft crime, the court has a sua sponte duty to instruct that the defendant may not be convicted of both theft and receiving the same stolen property. receiving stolen property if he is convicted of the theft of the same property. (CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited; see PC 496(a); People v. Ceja (2010) 49 Cal.4th 1, 6–7 [108 Cal.Rptr.3d 568, 229 P.3d 995]; People v. Garza (2005) 35 Cal.4th 866, 881–882 [28 Cal.Rptr.3d 335, 111 P.3d 310] [upholding dual convictions for receiving stolen property and a violation of Vehicle Code section 10851(a) as a nontheft conviction for post-theft driving].)
THEFT AND EXTORTION
CC 1806 Theft by Embezzlement (PC 484, 503) (Revised October 2010)
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph as follows [added language is underlined]:
Intent to return the property at the time of the taking is not a defense to embezzlement under PC 512 unless the property was returned before the person was charged. People v. Sisuphan (2010) 181 Cal.App.4th 800, 812 [104 Cal.Rptr.3d 654].
FORECITE Commentary: See FORECITE F 1806.6 Inst 1 for defense theory instructions on this defense. Until this revision CALCRIM made no reference to the defense and it still does not include the defense in the instruction.
CC 1862 Return of Property Not a Defense to Theft (PC 512, 513) (Revised October 2010)
AUTHORITY REVISION: Added reference to People v. Sisuphan (2010) 181 CA4th 800, 812 [intent to return embezzled property at time of taking not a defense under PC 512 unless the property was returned before the person was charged].
FORECITE Commentary: See FORECITE F 1862.2 Inst 1.
CC 1863 Defense to Theft or Robbery: Claim of Right (PC 511) (Revised October 2010)
AUTHORITY REVISION: Added reference to People v. Williams (2009) 176 CA4th 1521, 1529 [claim of right defense available to aiders and abettors].
FORECITE Commentary: See FORECITE F 1863 Note 9.
VEHICLE OFFENSES
CC 2140 Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver (VC 20001, 20003 & 20004) (October 2010)
LESSER INCLUDED OFFENSES REVISION: Modified as follows [added language is underlined]:
Misdemeanor Failure to Stop Following Accident—Property Damage. Veh. Code, § 20002; but see People v. Carter (1966) 243 Cal.App.2d 239, 242-243.
RELATED ISSUES REVISION: Added 2nd paragraph re:“Accusatory Pleading Alleged Property Damage” and citation to People v. Carter (1966) 243 CA2d 239, 242-243 [accusatory pleading alleges property damage, VC 20002].
CC 2141 Failure to Perform Duty Following Accident: Death or Injury—Defendant Nondriving Owner or Passenger in Control (VC 20001, 20003 & 20004) (Revised October 2010)
LESSER INCLUDED OFFENSES REVISION: See CC 2140 above.
CONTROLLED SUBSTANCES
CC 2300 Sale, Transportation, etc., of Controlled Substance (HS 11352, 11379) (Revised October 2010)
INSTRUCTION REVISION: Modified 7th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/gave away/transported/imported), only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2302 Possession for Sale of Controlled Substance (HS 11351, 11351.5, 11378, 11378.5) (Revised October 2010)
INSTRUCTION REVISION: Modified 7th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2303 Possession of Controlled Substance While Armed With Firearm (HS 11370.1) (Revised October 2010)
INSTRUCTION REVISION: Modified 6th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2304 Simple Possession of Controlled Substance (HS 11350, 11377) (Revised October 2010)
INSTRUCTION REVISION: Modified 4th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2321 Forged Prescription for Narcotic: With Possession of Drug (HS 11368) (Revised October 2010)
INSTRUCTION REVISION: Modified 5th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific narcotic drug (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a narcotic drug.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2350 Sale, Furnishing, etc., of Marijuana (HS 11360(a)) (Revised October 2010)
INSTRUCTION REVISION: Modified 7th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/imported), only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2352 Possession for Sale of Marijuana (HS 11018, 11359) (Revised October 2010)
INSTRUCTION REVISION: Modified 6th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2360 Transporting or Giving Away Marijuana: Not More Than 28.5 Grams – Misdemeanor (HS 11360(b)) (Revised October 2010)
INSTRUCTION REVISION: Modified 6th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (gave away/transported), only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2361 Transporting or Giving Away Marijuana: More Than 28.5 Grams (HS 11360(a)) (Revised October 2010)
INSTRUCTION REVISION: Modified 5th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (gave away/transported), only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS 11357(c)) (Revised October 2010)
INSTRUCTION REVISION: Modified 4th paragraph as follows [ deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2376 Simple Possession of Marijuana on School Grounds: Misdemeanor (HS 11357(d)) (Revised October 2010)
INSTRUCTION REVISION: Modified 5th paragraph as follows:
See CC 2375
.
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2380 Sale, Furnishing, etc., of Controlled Substance to Minor (HS 11353, 11354, 11380(a)) (Revised October 2010)
INSTRUCTION REVISION: Modified 6th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/gave away), only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2390 Sale, Furnishing, etc., of Marijuana to Minor (HS 11361) (Revised October 2010)
INSTRUCTION REVISION: Modified 7th paragraph as follows:
See CC 2380.
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
CC 2410 Possession of Controlled Substance Paraphernalia (HS 11364) (Revised October 2010)
INSTRUCTION REVISION: Modified first paragraph and Element 1 and 3 as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ] with possessing an object that can be used to unlawfully inject or consume smoke a controlled substance [in violation of Health and Safety Code section 11364].
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant [unlawfully] possessed an object that can be used to unlawfully inject or consume smoke a controlled substance;
2. The defendant knew of the object’s presence;
AND
3. The defendant knew that the object could be used to unlawfully inject or consume smoke a controlled substance.
CC 2440 Maintaining a Place for Controlled Substance Sale or Use (HS 11366) (Revised October 2010)
AUTHORITY REVISION: Added referenced to People v. Franco (2009) 180 CA4th 713, 718–719 [evidence of personal drug use not sufficient].
CRIMES AGAINST GOVERNMENT
CC 2748 Possession of Controlled Substance or Paraphernalia in Penal Institution (PC 4573.6) (Revised October 2010)
INSTRUCTION REVISION: Modified 5th paragraph as follows [deleted language is stricken]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
RELATED ISSUES REVISION – Administrative Punishment Does Not Bar Criminal Action & Medical Use of Marijuana: Corrected citation to Taylor v. Hamlet (N.D. Cal. 2003) 2003 U.S. Dist. LEXIS 19451.
FORECITE Commentary: See FORECITE F 2302.3 Inst 1, F 2302.3 Inst 2.
DEFENSES AND INSANITY
CC 3450 Insanity: Determination, Effect of Verdict (PC 25, 25.5) (Revised October 2010)
INSTRUCTION REVISION: Modified Element 2 as follows [added language is underlined; deleted language is stricken]:
2. Because of that disease or defect, (he/she) did not know was incapable of knowing or understand understanding the nature and quality of (his/her) act or did not know was incapable of knowing or understand understanding that (his/her) act was morally or legally wrong.
POST-TRIAL: CONCLUDING
CC 3516 Multiple Counts: Alternative Charges for One Event – Dual Conviction Prohibited (Revised October 2010)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
<Give this paragraph when the law does not specify which crime must be sustained or dismissed if the defendant is found guilty of both.>
[The defendant is charged in Count with _________ <insert name of alleged offense, e.g., theft> and in Count with _________ <insert name of alleged offense, e.g., receiving stolen property>. These are alternative charges. If you find the defendant guilty of one of these charges, you must find (him/her) not guilty of the other. You cannot find the defendant guilty of both.]
<Give the following paragraph when the defendant is charged with both theft and receiving stolen property offenses based on the same incident.>
[The defendant is charged in Count with _________ <insert theft offense> and in Count with _________ <insert receiving stolen property offense>. You must first decide whether the defendant is guilty of _________ <insert name of theft offense>. If you find the defendant guilty of _________ <insert name of theft offense>, you must return the verdict form for _________ <insert name of receiving stolen property offense> unsigned. If you find the defendant not guilty of _________ <insert theft offense> you must then decide whether the defendant is guilty of _________ <insert name of receiving stolen property offense>.]
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph as follows:
If the defendant is charged with both theft and receiving stolen property, and the jury informs the court that it cannot reach a verdict on the theft count, the court may then instruct the jury to consider the receiving stolen property count.
AUTHORITY REVISION: Added 3rd paragraph and reference to People v. Ceja (2010) 49 C4th 1, 3–4 [conviction of receiving stolen property not possible if defendant convicted of theft].
RELATED ISSUES REVISION – Dual Conviction May Not Be Based on Necessarily Included Offenses: Deleted 2nd paragraph as follows:
Some courts have also applied the “accusatory pleading” test to determine whether one offense is necessarily included in another. (See People v. Malfavon (2002) 102 Cal.App.4th 727, 742 [125 Cal.Rptr.2d 618] [court must compare “the facts actually alleged in the accusatory pleading” to determine if one offense is necessarily included in the other].) In People v. Montoya, supra, 33 Cal.4th at p. 1034, however, the Supreme Court observed that the “accusatory pleading” test is generally used “to determine whether to instruct a jury on an uncharged lesser offense.” The Court further noted that “[s]ome Court of Appeal decisions have concluded that the accusatory pleading test . . . does not apply to considerations of whether multiple convictions are proper.” (Id. at p. 1036 [internal quotation marks and citation omitted].) The Court declined to decide this issue. (Ibid.) Justice Chin, in a concurring opinion, expressed the opinion that the “accusatory pleading” test should not be used to determine whether one offense is necessarily included in another. (Id. at p. 1039.)
CC 3550 Pre-Deliberation Instructions (Revised October 2010)
AUTHORITY REVISION: Added reference to People v. Gainer (1977) 19 C3d 835, 850-852 and People v. Moore (2002) 96 CA4th 1105, 1118–1121 [hung jury]. Added reference to People v. Santiago (2010) 178 CA4th 1471, 1475-1476 [instruction upheld].
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