APRIL 2008 REVISIONS – FORECITE Critique And Comments*

FORECITE April 2008 CALCRIM Revisions

Please select the link below to download the April 2008 CALCRIM Revisions in its entirety.

DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY

April 2008 CALCRIM Revisions
FORECITE Critique And Comments*

* The new and revised instructions in the “2008” edition were proposed in January 2008 and approved by the Judicial Council on and became effective April 25, 2008.

http://www.courtinfo.ca.gov/jc/documents/reports/042508item1A.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. Second, to provide commentary on selected revisions which alert practitioners to potential trial and/or appellate issues related to the revision.

II. Caveat

The FORECITE commentary is not intended to address every potential issue related to the instruction discussed. Counsel should independently review and research each instruction in light of the specific circumstances of the case in which it is used.

III. A Suggested Practice Strategy Re: Revised Instructions

Trial Counsel:

1. Consider whether or not to request the revised version of any instruction. Such a request could make it more difficult to raise any deficiency in the instruction on appeal. On the other hand, if the unrevised version is given at the DA’s request or sua sponte by the judge, any deficiency in that instruction may be reviewable on appeal even if you don’t object. (See FORECITE PG VI(A) Cognizability On Appeal Of Instructional Error: Failure To Object.)

2. Examine any downside to the revised version and consider requesting the prior version instead. (See e.g., FORECITE 220.2 Inst 3 [The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220].)

3. Review the entire instruction—including the revision—for any potential deficiencies or shortcomings in light of your particular facts.

4. Browse the FORECITE entries for the instruction at issue and make any objections or motions which may be warranted based on those materials.

5. IMPORTANT: Do all of the above BEFORE trial.

Appellate Counsel:

1. Review written and oral record of the jury instructions to determine whether or not the judge gave the revised version of any CALCRIM.

2. For any instruction given in your case that was subsequently revised consider whether the revision corrected a problem with the instruction which could be an appellate issue. [If so, you can then cite the revised CALCRIM as authority in support of a claim that the non-revised instruction was erroneous.]

3. Review the FORECITE materials for the instructions given in your case for other potential appellate issues.

IV. “Nonsubstantive” Changes

In addition to the revised instructions identified by the Judicial Council and discussed below, “nonsubstantive grammatical and typographical” changes were made to 244 other instructions without specific Judicial Council Approval. See http://www.courtinfo.ca.gov/jc/documents/reports/102006ItemB.pdf

Table of Contents
April 2008 CALCRIM Revisions

Deleted language is stricken; added language underlined and capitalized.

Guide for using the Judicial Council of California Criminal Jury Instructions (“CALCRIM”)

PRETRIAL

CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected)
CC 102 Note-Taking
CC 104 Evidence
CC 105 Witness

POST-TRIAL: INTRODUCTORY

CC 200 Duties of Judge and Jury
CC 202 Note-Taking
CC 226 Witnesses
CC 250 Union of Act and Intent: General Intent
CC 251 Union of Act and Intent: Specific Intent or Mental State

EVIDENCE

CC 375 Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.

HOMICIDE

CC 640 Deliberations and Completion of Verdict Forms: For Use When Jury Is Given Not Guilty Forms for Each Level of Homicide
CC 641 Deliberations and Completion of Verdict Forms: For Use When Jury Is Given Only One Not Guilty Verdict Form for Each Count (Homicide)
CC 703 Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder (PC 190.2(d))
CC 730 Special Circumstances: Murder in Commission of Felony (PC 190.2(a)(17))
CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (PC 190.3)

ASSAULTIVE AND BATTERY CRIMES

CC 852 Evidence of Uncharged Domestic Violence
CC 853 Evidence of Uncharged Abuse of Elder or Dependent Person
CC 900 Assault on Firefighter, Peace Officer or Other Specified Victim (PC 240, 241)

SEX OFFENSES

CC 1070 Unlawful Sexual Intercourse: Defendant 21 or Older (PC 261.5(a) & (d))
CC 1191 Evidence of Uncharged Sex Offense

KIDNAPPING

CC 1201 Kidnapping: Child or Person Incapable of Consent (PC 207(a), (e))
CC 1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses (PC 209(b))
CC 1225 Defense to Kidnapping: Protecting Child From Imminent Harm (PC 207(f)(1))

CRIMINAL STREET GANGS

CC 1401 Felony Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1))

THEFT AND EXTORTION

CC 1806 Theft by Embezzlement (PC 484, 503)

VEHICLE OFFENSES

CC 2100 Driving Under the Influence Causing Injury (VC 23153(a))
CC 2101 Driving With 0.08 Percent Blood Alcohol Causing Injury (VC 23153(b))
CC 2110 Driving Under the Influence (VC 23152(a))
CC 2111 Driving With 0.08 Percent Blood Alcohol (VC 23152(b))
CC 2220 Driving With Suspended or Revoked Driving Privilege (VC 13106, 14601, 14601.1, 14601.2, 14601.5.)

WEAPONS

CC 2500 Illegal Possession, etc., of Weapon (PC 12020(a)(1) & (2))

CRIMES AGAINST GOVERNMENT

CC 2701 Violation of Court Order: Protective Order or Stay Away (PC 166(c)(1), 273.6)

TAX CRIMES

CC 2840 Evidence of Uncharged Tax Offense: Failed to File Previous Returns

DEFENSES AND INSANITY

CC 3402 Duress or Threats
CC 3403 Necessity
CC 3404 Accident (PC 195)
CC 3406 Mistake of Fact
CC 3408 Entrapment
CC 3410 Statute of Limitations
CC 3425 Unconsciousness
CC 3450 Insanity: Determination, Effect of Verdict (PC 25, 25.5)
CC 3455 Mental Incapacity as a Defense (PC 25, 25.5)
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide)
CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor
CC 3475 Right to Eject Trespasser From Real Property
CC 3476 Right to Defend Real or Personal Property

POST-TRIAL: CONCLUDING

CC 3550 Pre-Deliberation Instructions

Guide for Using Judicial Council of California Criminal Jury Instructions (“CALCRIM”)

REVISION: Several minor revisions; change in reference from Rule 2.1050 to 855 of the California Rules of Court. Revision to Lesser Included Offenses section [added language is underlined; deleted language is stricken]:

Users will need may wish to modify instructions used to explain lesser included offenses. The introductory language states: “The crime of (e.g., false imprisonment) is a lesser offense than the crime of _____ (e.g., kidnapping).” This would replace by replacing the standard introductory sentence, “The defendant is charged with . . . .” In addition, the user must add to the end of the instruction on any lesser offense an explanation of the burden of proof as required by People v. Dewberry (1992) 8 Cal.App.4th 1017, 1021. That addition is: “The People have the burden of proving that the defendant committed ________ (insert greater offense, e.g., kidnapping) rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of ________ (insert greater offense, e.g., kidnapping).” with “The crime of ______ (e.g., false imprisonment) is a lesser offense than the crime of ________ (e.g., kidnapping)” to amplify the explanation provided in instructions 3517-3519: “________<insert crime> is a lesser crime of ________<insert crime> [charged in Count ________].”

When giving the lesser included offense instructions 640 and 641 (homicide) or instructions 3517-3519 (non-homicide), no further modification of the corresponding instructions on lesser crimes is necessary to comply with the requirements of People v. Dewberry (1959) 51 Cal.2d 548.

FORECITE COMMENTARY: The Committee cites no authority in support of its pronouncement that no instruction is necessary to relate the burden of proof to a lesser included offense per People v. Dewberry (1959) 51 C2d 548. This unsupported “judicial” conclusion should not be followed for several reasons.

First, the Committee’s pronouncement exceeds the scope of its authority. (See CALCRIM Motion Bank # CCM-001.) The Committee is not vested with the authority to make unsupported judicial pronouncements. “The articulation and interpretation of California law … remains within the purview of the Legislature and the courts of review.” (California Rules of Court, Rule 2.1050(b); see also McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 841 [standard jury instructions are “not blessed with any special precedential or binding authority”].) See also FORECITE PG XI(A)(3).

Second, the Committee’s pronouncement conflicts with and undermines longstanding legislation on lesser included offenses which provides that:

When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only. (PC 1097; enacted 1872.)

Third, by purporting to “overrule” People v. Dewberry (1959) 51 C2d 548 and PC 1097 the Committee has, by quasi-judicial fiat, wiped 120 years of judicial precedent off the books. As Dewberry observed:

It has been consistently held in this state since 1880 that when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Emphasis added.] (Dewberry, at 555.)

Moreover, the case law – as well as the CALJIC committee – consistently followed Dewberry. (People v. Crone (1997) 54 CA4th 71,79 [failure to instruct on effect of reasonable doubt in choosing between greater and lesser offense was error]; People v. Aikin (1971) 19 CA3d 685, 699-703; see also Annotation, Duty to charge as to reasonable doubt as between degrees of crime or included offenses, 20 ALR 1258 and Later Case Service.)

Fourth, even if PC 1097 and the Dewberry line of cases were not on the books, the defense would have the right to a defense theory instruction relating the lesser offense theory to the prosecution’s burden of proof. (See Points and Authorities to FORECITE F 315.1.2 Inst 2.) “Each party has an absolute right to instruction based on its own theory of the case if there is any evidence to support it. [Citations.]” (Maxwell v. Powers (1994) 22 CA4th 1596, 1607; see also Logacz v. Brea Community Hospital, et al. (1999) 71 CA4th 1149.) “A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (1994) 8 C4th 548, 572; see also Conde v. Henry (9th Cir 1999) 198 F3d 734, 741 [reversal required without harmless error analysis because errors affected the “very framework within which the trial proceeded…[and] prevented the defendant from presenting his theory of the defense and prevented the jury from determining whether all elements of [the charge] had been proved beyond a reasonable doubt”]; see also PG V(B) 1.1–1.3; PG VII(C)(13).

PRETRIAL

CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: 2nd paragraph added:

Do not share information about the case in writing, by email, or on the Internet.

Modified 4th paragraph as follows [added language is underlined]:

You must not allow anything that happens outside of the courtroom to affect your decision [unless I tell you otherwise]. During the trial, do not read, listen to, or watch any news report or commentary about the case from any source.

Added 6th paragraph re: cell phones; modified 7th paragraph as follows [deleted language is stricken]:

When the trial has ended and you have been released as jurors, you may discuss the case with anyone. But under California law, you must wait at least 90 days before negotiating or agreeing to accept any payment for information about the case.

FORECITE COMMENTARY: Pursuant to CCP 206(a) jurors have “an absolute right” either to speak to defense counsel, the prosecutor, or the respective representatives of either party, or to decline to do so. (Townsel v. Superior Court (1999) 20 C4th 1084, 1095.) The judge is obligated to inform the jurors of this “absolute right.” (Ibid; see also CALCRIM 3590.)

CC 102 Note-Taking (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: Added last paragraph re: collection of notes at end of case.

BENCH NOTES REVISION: Added 2nd paragraph re: disposition of notes after trial.

FORECITE COMMENTARY: Destruction of the jurors’ notes should not be an option at least until any post-conviction litigation, including federal habeas corpus, is final. (See FORECITE F 102 Note 2.)

CC 104 Evidence (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Added last sentence to first paragraph re: arrest not evidence of guilt.

FORECITE COMMENTARY: See FORECITE F 103.1 Inst 6.

CC 105 Witnesses (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: 1st paragraph modified as follows [added language is underlined; deleted language is stricken]

You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. TYou must judge the testimony of each witness must be judged by the same standard. You must set standards, setting aside any biasorprejudice you may have, including any based on the witness’s disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin, [or] socioeconomic status[, or ________ <insert any other impermissible bias as appropriate>]. You may believe all, part, or none of anywitness’s testimony.Consider the testimony of each witness and decide how much of it you believe.

FORECITE COMMENTARY: See FORECITE F 105.1–F 105.5.

POST-TRIAL: INTRODUCTORY

CC 200 Duties of Judge and Jury (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: 1st paragraph, added 3rd sentence re: format of instructions. Modified 4th paragraph as follows [added language is underlined; deleted language is stricken]:

You must reach your verdict without any consideration of punishment. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant[s] or alleged victim[s], based on disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, age, [or] socioeconomic status (./,) [or ________<insert any other impermissible basis for bias as appropriate>.]

AUTHORITY REVISION: Deleted reference to People v. Nichols (1997) 54 CA4th 21, 24 [do not consider punishment]. No Bias, Sympathy, or Prejudice – Added reference to PC 1127h.

FORECITE COMMENTARY: See FORECITE F 200.3 and F 200.4.

CC 202 Note-Taking (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION AND BENCH NOTES REVISION: See CC 102 Note-Taking, above.

CC 226 Witnesses (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: See CC 105 Witnesses, above.

CC 250 Union of Act and Intent: General Intent (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:

For you to find a person guilty of the crime[s] (in this case/ of __________ <insert name[s] of alleged offense[s] and count[s], e.g., battery, ascharged in Count 1> [or to find the allegation[s] of __________ <insert name[s] of enhancement[s]> true]), that personmust notonly commit the prohibited act [or fail to do the required act], but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime [or allegation].

CC 251 Union of Act and Intent: Specific Intent or Mental State (New January 2006; Revised August 2006, June 2007, April 2008)

INSTRUCTION REVISION: See CC 250 [Union of Act and Intent: General Intent] above.

EVIDENCE

CC 375 Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc. (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Last paragraph, modified as follows [added language is underlined; deleted language is stricken]:

If you conclude that the defendant committed the (uncharged offense[s]/ act[s]), that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of ________ <insert charged offense charge[s]> [or that the ________ <insert allegation[s]> has been proved]. The People must still prove each element of (the/every the/each) charge (charge/ [and] allegation) beyond a reasonable doubt.

FORECITE COMMENTARY: As with their 2007 modification of CALCRIM 103 (¶ 2), the Committee failed to explain why the “each element” language – which is a correct statement of the law (see CALCRIM Article Bank # CCA-004) – was removed from CC 375. Hence, a request for the original CALCRIM “each element” language is fully justified. And, if that request is denied then counsel should be able to argue to the jury that it is a correct statement of the law and that the jurors must follow it. (See FORECITE F 200.5 Inst 2.)

HOMICIDE

CC 640 Deliberations and Completion of Verdict Forms: For Use When Jury Is Given Not Guilty Forms for Each Level of Homicide (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Changed title from “Procedure for Completion of Verdict Forms: With Stone Instruction.”

Modified as follows [added language is underlined; deleted language is stricken]:

You have been given several [For each count charging (murder/ manslaughter),] (Y/y)ou (have been/will be) given verdict forms for (the/each) count of murder [and manslaughter]. [These instructions apply to each count separately.]

In connection with Count[s] , I have given you ________ <insert number of verdict forms> separate verdict forms. These are: Guilty/Not Guilty of first degree murder and second degree murder [and (guilty and not guilty of [first degree murder (, /and)]] [second degree murder (, /and)] [voluntary manslaughter[ (,]/ [and /and)] [involuntary manslaughter)].

You may consider these different kinds of homicide in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use. As, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of [all of] the greater crime[s]. [As with all the charges in this case, to] (To/to) return a verdict ofguilty or notguilty on a count, you must all agree on that decision.

If you all agree the People have not proved the defendant committed an unlawful killing, then you must complete each verdict form stating that (he/she) is not guilty.

If you all agree the People have proved the defendant killed unlawfully, you must decide what kind or degree of unlawful killing the People have proved.

If you all Follow these directions before you give me any completed and signed, final verdict form(s). [Return the unused verdict forms to me, unsigned.]

1. If all of you agree that the People have proved that the unlawful killing was first degree murder, complete the verdict form stating that the defendant is guilty of first degree murder. Do not complete the other verdict forms for this count.

If you all agree that the defendant is not guilty of first degree murder, but you agree the People have proved the killing was second degree murder, you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Then, complete the verdict form stating that the defendant is guilty of second degree murder. Do not complete the verdict form stating beyond a reasonable doubt that the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder__________<insert greatest level of homicide charged>, complete and sign that verdict form. Do not complete the other verdict forms for this count.

If you all agree the People have proved the defendant committed murder, but you cannot all agree on which degree they have proved, do not complete any verdict forms. Instead, the foreperson should send a note reporting that you cannot all agree on the degree of murder that has been proved.

If you all agree that the defendant is not guilty of first degree murder, but you cannot all agree on whether or not the People have proved the defendant committed second degree murder, then you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Second, the foreperson should send a note reporting that you cannot all agree that second degree murder has been proved. Do not complete any other verdict forms for this count.

The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of first degree murder.

<A. Voluntary Manslaughter: Lesser Included>

[If you all agree that the defendant is not guilty of first or second degree murder, but you all agree the People have proved that (he/she) is guilty of voluntary manslaughter, then you must do two things. First, complete the verdict forms stating that (he/she) is not guilty of first and second degree murder. Second, complete the verdict form stating that (he/she) is guilty of voluntary manslaughter. Do not complete the verdict form stating that the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. Do not complete any other verdict forms for this count.

If you all agree that the defendant is not guilty of first or second degree murder, but you cannot all agree on whether or not the People have proved the defendant committed voluntary manslaughter, then you must do two things. First, complete both verdict forms stating that the defendant is not guilty of first and second degree murder. Second, the foreperson should send a note reporting that you cannot all agree that voluntary manslaughter has been proved.

The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.]

<B. Involuntary Manslaughter: Lesser Included>

[If you all agree that the defendant is not guilty of murder or voluntary manslaughter, but you all agree the People have proved that (he/she) is guilty involuntary manslaughter, then you must do two things. First, complete the verdict forms stating that (he/she) is not guilty of first degree murder, second degree murder, and voluntary manslaughter. Second, complete the verdict form stating that (he/she) is guilty of involuntary manslaughter. Do not complete the verdict form stating that or sign any other verdict forms [for that count].

2. If all of you cannot agree whether the defendant is guilty of involuntary manslaughter unless you all agree that the defendant is not guilty of murder or voluntary manslaughter. If you all ________<insert greatest level of homicide charged>, inform me only that you cannot reach an agreement and do not complete or sign any verdict forms [for that count].

3. If all of you agree that the defendant is not guilty of murder or voluntary manslaughter, but you cannot all agree whether or not the People have proved the defendant committed involuntary manslaughter, then you must do two things. First, complete all three ________ <insert greatest level of homicide charged> but also agree that the defendant is guilty of ________ <insert greatest included offense>, complete and sign the form for not guilty of ________ <insert greatest level of homicide charged> and the form for guilty of ________ <insert greatest included offense>. Do not complete or sign any other verdict forms [for that count].

4. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> but cannot agree whether the defendant is guilty of __________ <insert greatest included offense>, complete and sign the form for not guilty of ________ <insert greatest level of homicide charged> and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count].

[5. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense>, complete and sign the verdict forms stating for not guilty of both.]

[5. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ ________ <insert greatest included offense>, but also agree that the defendant is guilty of <insert second greatest included offense>, complete and sign the forms for not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense> and the form for guilty of ________ <insert second greatest included offense>. Do not complete or sign any other verdict forms [for that count].

6. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense>, but cannot agree whether the defendant is guilty of ________ <insert second greatest included offense>, complete and sign the forms for not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense> and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count]].

<In addition to paragraphs 1–6, give the following if there are two, but only two, lesser included offenses>

[7. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged>, <insert greatest included offense>, or ________ <insert second greatest included offense>, complete and sign the verdict forms for not guilty of all.]

[7. If all of you agree that the defendant is not guilty of first degree murder, second degree murder, and voluntary manslaughter. Second, the foreperson should send a note reporting that you cannot all agree that involuntary manslaughter has been proved.

The People have the burden of proving that the defendant committed or second degree murder or voluntary manslaughter rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder and, but also agree that the defendant is guilty of involuntary manslaughter, complete and sign the forms for not guilty of first degree murder, not guilty of second degree murder, and not guilty of voluntary manslaughter, and the form for guilty of involuntary manslaughter. Do not complete or sign any other verdict forms [for that count].

8. If all of you agree that the defendant is not guilty of first or second degree murder or voluntary manslaughter, but cannot agree whether the defendant is guilty of involuntary manslaughter, complete and sign the forms for not guilty of first degree murder, not guilty of second degree murder, and not guilty of voluntary manslaughter, and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count].

9. If all of you agree that the defendant is not guilty of any homicide [charged in that count], complete and sign the verdict forms for not guilty of first degree murder, not guilty of second degree murder, not guilty of voluntary manslaughter, and not guilty of involuntary manslaughter.]

BENCH NOTES REVISION: Modified references to People v. Marshall (96) 13 C4th 799, 826 and Stone v. Superior Court (82) 31 C3d 503, 519.

2nd paragraph, deleted last sentence re: Marshall and Stone [If the jury later declares that it is unable to reach a verdict on a lesser offense, then the court must give this instruction, providing the jury an opportunity to acquit on the greater offense].

Modified 3rd paragraph as follows:

The court should tell the jury it may not accept return a guilty verdict on a lesser included offense unless the jury it has returned a found the defendant not guilty verdict on the greateroffense. (People v. Fields, supra, 13 C4th at pp. 310–311.) If the court does record a guilty verdict on the lesser offense without first requiring an explicit not guilty finding jury announces that it is deadlocked on the greater offense and then discharges the jury, retrial on the greater offense will be barred. (Id. at p. 307; PC 1023.) If, despite the court’s instructions, the jury but, despite the court’s instructions, has returned a guilty verdict on the lesser offense without explicitly acquitting on the greater offense, the court must included offense, the court should again instruct the jury that it may not convict of the lesser included offense unless ithas found the defendant not guilty of the greateroffense. (People v. Fields, supra, Ibid 13 C4th at p. 310.) The court should direct the jury to reconsiderthe “loneverdict of conviction of the lesser included offense” in light of this instruction. (Ibid.; PC 1161.) If the jury is deadlocked on the greater offense but the court nevertheless records a guilty verdict on the lesser included offense and then discharges the jury, retrial on the greater offense will be barred. (People v. Fields, supra, 13 C4th at p. 307; PC 1023.)

Deleted last paragraph and reference to People v. Aikin (71) 19 CA3d 685, 700 and People v. Lines (1975) 13 C3d 500, 513.

CC 641 Deliberations and Completion of Verdict Forms: For Use When Jury Is Given Only One Not Guilty Verdict Form for Each Count (Homicide) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Changed title from “Procedure for Completion of Verdict Forms: Without Stone Instruction.”

Modified as follows [added language is underlined; deleted language is stricken]:

You have been given [one] verdict form[s] for (the/each) count of murder [and manslaughter]. [These instructions apply to each count separately.] [For each count charging (murder/ manslaughter),] (Y/you) (have been/will be) given verdict forms for guilty of [first degree murder][,] [guilty of second degree murder][,] [guilty of voluntary manslaughter][,] [guilty of involuntary manslaughter][,] and not guilty.

You may consider these different kinds of homicide in whatever order you wish. I am going to explain how to complete the verdict form[s] using one order, but you may choose the order to use. , but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of [all of] the greater crime[s].

[As with all the charges in this case, to] (To/to) return a verdict ofguilty ornot guilty on a count, you must all agree on that decision.

If you all agree follow these directions before you give me any completed and signed, final verdict form. You will complete and sign only one verdict form [per count]. [Return the unused verdict forms to me, unsigned.]

1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of __________ <insert greatest level of homicide charged>, complete and sign that verdict form. Do not complete or sign any other verdict forms [for that count].

2. If all of you agree that the People have not proved the defendant committed an unlawful killing, then you must state on the verdict form that (he/she) is not guilty. If you all agree the People have proved the defendant committed murder, you must also decide what degree of murder the People have proved. You must all agree on the degree of murder (he/she) committed. If you all beyond a reasonable doubt that the defendant is guilty of __________ <insert greatest level of homicide charged> but also agree that the defendant is guilty of murder and on the degree of murder, then complete the form stating that __________ <insert greatest included offense>, complete and sign the form for guilty of <insert greatest included offense>. Do not complete or sign any other verdict forms [for that count]. You may return a verdict of guilty of __________ <insert greatest included offense> only if you have found the defendant not guilty of __________ <insert greatest level of homicide charged>.

[3. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of murder and the degree. Do not return a verdict form stating __________ <insert greatest level of homicide charged> and __________ <insert greatest included offense>, but also agree that the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder.

<A. Voluntary Manslaughter: Lesser Included>

[If you all agree that the defendant is not guilty of first or second degree murder, but you all agree the People have proved (he/she) is guilty of voluntary manslaughter, then complete the verdict form stating that (he/she) is guilty of voluntary manslaughter. Do not complete a verdict form stating the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder.

The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find __________ insert second greatest included offense>, return the form for guilty of __________ <insert second greatest included offense>. Do not complete or sign any other verdict forms [for that count]. You may return a verdict of guilty of __________ <insert second greatest included offense> only if you have found the defendant not guilty of murder.] __________ <insert greatest level of homicide charged> and __________ <insert greatest included offense>.]

<B. Involuntary Manslaughter:

<Three Lesser Included>Included Offenses>

[If you all agree 4. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is not guilty of first or second degree murder and not guilty of or voluntary manslaughter, but you all agree the People also have proved agree that the defendant is guilty of involuntary manslaughter, then complete and sign the verdict form stating that (he/she) is for guilty of involuntary manslaughter. Do not complete a or sign any other verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree that the defendant is not guilty of murder and not guilty of voluntary manslaughter.

The People have the burden of proving that the defendant committed murder or voluntary forms [for that count]. You may return a verdict of guilty of involuntary manslaughter rather than a lesser offense. If the People have not met this burden, you must find the only if you have found the defendant not guilty of murder and not guilty of or voluntary manslaughter.]

5. If all of you agree the People have not proved the defendant committed an unlawful killing, complete and sign the verdict form for not guilty.

6. If all of you cannot agree whether the defendant committed an unlawful killing or what kind of unlawful killing (he/she) committed, inform me only that you cannot reach agreement [on that count] and do not complete or sign any verdict form [for that count]. You may return to me a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of [all of] the greater crime[s].]

BENCH NOTES REVISION: See CC 640 [Deliberations and Completion of Verdict Forms: For Use When Jury Is Given Not Guilty Forms for Each Level of Homicide] above.

CC 703 Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder (PC 190.2(d)) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Modified Elements as follows [added language is underlined; deleted language is stricken]:

11. The defendant’s participation in the crime began before or during the killing;

2. The defendant was a major participant in the crime;

AND

23. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life.

CC 730 Special Circumstances: Murder in Commission of Felony (PC 190.2(a)(17)) (New January 2006; Revised August 2006 and April 2008)

INSTRUCTION REVISION: Modified Element 3 as follows [added language is underlined; deleted language is stricken]:

[3. If the defendant did not personally commit [or attempt to commit] _______ <insert felony or felonies from PC 190.2(a)(17)>, then a perpetrator, (whom the defendant was aiding and abetting/abetting before or during the killing/ [or] with whom the defendant conspired), personallycommitted [or attempted tocommit] ________ <insert felony or felonies from PC 190.2(a)(17)>;]

CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (PC 190.3) (New January 2006; Revised August 2006, June 2007 and April 2008)

INSTRUCTION REVISION: Modified Factor (a) and (c) as follows [added language is underlined; deleted language is stricken]:

(a) The circumstances of the crime[s] that of which the defendant was convicted of in this case and any special circumstances that were found true.

. . .

(c) Whether or not the defendant has been convicted of any prior felony other than the crime[s] of which the defendant (he/she) wasconvicted in this case or the absence of any prior felony conviction.

ASSAULTIVE AND BATTERY CRIMES

CC 852 Evidence of Uncharged Domestic Violence (New January 2006; Revised August 2006, June 2007 and April 2008)

INSTRUCTION REVISION: Modified 9th paragraph, 4th sentence as follows [added language is underlined; deleted language is stricken]:

The People must still prove each element of every charge (the/each) (charge/ [and] allegation) beyond a reasonable doubt.

COMMENTARY REVISION: Modified last paragraph to reflect the above change.

FORECITE COMMENTARY: See FORECITE Commentary to CALCRIM 375, above.

CC 853 Evidence of Uncharged Abuse of Elder or Dependent Person (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Modified 7th paragraph, last sentence as follows [added language is underlined; deleted language is stricken]:

The People must still prove each element of every (the/each) (charge/ [and] allegation) beyond a reasonable doubt.

COMMENTARY REVISION: Modified last paragraph to reflect the above change.

FORECITE COMMENTARY: See FORECITE Commentary to CC 375.

CC 900 Assault on Firefighter, Peace Officer or Other Specified Victim (PC 240, 241) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Changed title from “Assault on Firefighter or Peace Officer (PC 240, 241(b))” and deleted reference to PC241(b) in title and added reference to PC241(c) throughout instruction.

Modified Element 6 as follows [added language is underlined; deleted language is stricken]:

6. When the defendant acted, (he/she) knew, or reasonably should have known, that the person assaulted was a (firefighter/peace officer/ ________ <insert description of other person from PC 241(b) or (c)>) (who was performing (his/her) duties duties/ providing emergency medical care)(;/.)

BENCH NOTES REVISION: 2nd paragraph, added last sentence re: change to Element 6.

SEX OFFENSES

CC 1070 Unlawful Sexual Intercourse: Defendant 21 or Older (PC 261.5(a) & (d)) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Modified last paragraph, second sentence as follows [added language is underlined; deleted language is stricken]:

The People must prove beyond In order for reasonable and actual belief to excuse the defendant’s behavior, there must be evidence tending to show that (he/she) reasonably and actually believed that the other person was age 18 or older. If you have a reasonable doubt that about whether the defendant did not reasonably and actually believed that the otherpersonwas at least age 18 years old. If the People have not met this burden or older, you must find the defendant (him/her) not guilty of this crime.]

BENCH NOTES REVISION: Added 2nd paragraph re: CC 3406 and sua sponte duty to instruct on the defense of mistake of fact. Added “Related Instruction: CALCRIM No. 3406, Mistake of Fact.”

AUTHORITY REVISION: Added reference to. People v. Zeihm (74) 40 CA3d 1085, 1089 [good faith belief in victim’s age].

FORECITE COMMENTARY: The following CALCRIM language unconstitutionally shifts the burden of proof:

1. “. . .[T]here must be evidence tending to show that [the defendant] reasonably and actually believed that the other person was age 18 or older.”

2. “If you have a reasonable doubt about whether the defendant reasonably and actually believed that the otherpersonwas age 18 or older, you must find (him/her) not guilty.”

Each of these passages, individually and when read together, imply that the defendant has some burden of proof on the issue. However, since this is a defense which negates an element of the change, the defense has no burden whatsoever as far as the jurors are concerned. The defense does have the burden of producing substantial evidence to trigger the judge’s duty to instruct on the defense theory. (See FORECITE F 100.1 Inst 1; F 315.1.2 Inst 2.) However, the burden of production is only relevant vis-à-vis the judge’s determination of whether to instruct. (See FORECITE F 1.00 n9 [Error To Instruct Or Imply That Defense Has Any Burden Of “Going Forward” With Evidence].) Once the judge has found substantial evidence to instruct on the defense theory the jurors’ only concern should be to determine whether the prosecution has disproved the defense theory beyond a reasonable doubt. See e.g., CALCRIM 511 (Excusable Homicide):

“The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter).” (CC 511, last paragraph.)

Hence, CALCRIM 1070 should be modified to a format similar to CALCRIM 511.

KIDNAPPING

CC 1201 Kidnapping: Child or Person Incapable of Consent (PC 207(a), (e)) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Modified Element 1 as follows [added language is underlined; deleted language is stricken]:

1. The defendant used enough (physical force force/deception) to take and carry away an unresisting (child/ [or] person with a mental impairment);

Added 5th paragraph re: “deception.”

AUTHORITY REVISION: Added reference to People v. Dalerio (2006) 144 CA4th 775, 783 [deceit may substitute for force].

FORECITE COMMENTARY: See FORECITE F 1201.

CC 1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses (PC 209(b)) (New January 2006; Revised June 2007 and, April 2008)

INSTRUCTION REVISION: Added 5th Element and renumbered remaining elements as follows [added language is underlined; deleted language is stricken]:

5. When that movement began, the defendant already intended to commit (robbery/ [or] rape/ [or] spousal rape/[or] oral copulation/ [or] sodomy/ [or] sexual penetration/[or] ________ <insert other offense specified in statute>);

Moved 3rd paragraph re: “consent.” Modified 9th paragraph [Defense: Consent Given ], 2nd sentence, as follows:

The other person consented if (he/she) (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding mental capacity to choose to go with the defendant.

BENCH NOTES REVISION: Added “Timing of Necessary Intent.”

AUTHORITY REVISION: “Other Sex Offenses Defined” – Deleted reference to PC286; added reference to PC264.1 [acting in concert] and PC286 [sodomy]. Added reference to People v. Dominguez (2006) 39 C4th 1141, 1153 [movement must substantially increase risk of harm to victim]; In re Michele D. (2002) 29 C4th 600, 610–611 and People v. Oliver (1961) 55 C2d 761, 768 [movement must be for illegal purpose or intent if victim incapable of consent].

COMMENTARY REVISION: Deleted “Commentary” re: movement must “substantially” increase the risk of harm to the victim.

FORECITE COMMENTARY: The 2008 CALCRIM modification adding Element 5 addresses the inadequacy previously identified by FORECITE in F 1203.5 Inst 4.

CC 1225 Defense to Kidnapping: Protecting Child From Imminent Harm (PC 207(f)(1)) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Deleted title “<Alternative A—reasonable doubt standard>.” Deleted <Alternative B—preponderance standard>:

[The defendant has the burden of proving by a preponderance of the evidence that (he/she) was acting to protect the child from danger of imminent harm. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

BENCH NOTES REVISION: Deleted first sentence re: “no reported cases specifically discuss the court’s duty to instruct on the prevention of imminent harm to a child.” Deleted 3rd paragraph re: whether defense must be proven by defendant by a preponderance of the evidence or the prosecution must prove its absence beyond a reasonable doubt.

AUTHORITY REVISION: Added reference to People v. Neidinger (2006) 40 C4th 67, 79 [defendant’s burden of proof on imminent harm defense].

FORECITE COMMENTARY: The Committee’s deletion of the preponderance alternative addresses the deficiency previously identified by FORECITE F 1225.3 Inst 2.

CRIMINAL STREET GANGS

CC 1401 Felony Committed for Benefit of Criminal Street Gang (PC 186.22(b)(1)) (New January 2006; Revised August 2006, June 2007, April 2008)

INSTRUCTION REVISION: Added the following after the 11th paragraph:

BENCH NOTES REVISION: Modified the 4th paragraph as follows [added language is underlined; deleted language is stricken]:

The court should also give the appropriate instructions defining the elements of all crimes inserted in the definition of “criminal street gang” or “pattern of criminal gang activity activity” that have not been established by prior convictions.“

THEFT AND EXTORTION

CC 1806 Theft by Embezzlement (PC 484, 503) (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: Added 5th paragraph re: mistaken or unreasonable belief.

BENCH NOTES, AUTHORITY & RELATED ISSUES REVISIONS: Minor changes in citations.

VEHICLE OFFENSES

CC 2100 Driving Under the Influence Causing Injury (VC 23153(a)) (New January 2006; Revised June 2007 and, April 2008)

BENCH NOTES REVISION: Deleted the following from the 6th paragraph:

In addition, it is only appropriate to instruct the jury on a permissive inference if there is no evidence to contradict the inference. (EC 604.) If any evidence has been introduced to support the opposite factual finding, then the jury “shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Ibid.)

CC 2101 Driving With 0.08 Percent Blood Alcohol Causing Injury (VC 23153(b)) (New January 2006; Revised August 2006 and April 2008)

BENCH NOTES REVISION: See CC 2100 [Driving Under the Influence Causing Injury (Veh.Code, 23153(a))], above.

CC 2110 Driving Under the Influence (VC 23152(a)) (New January 2006; Revised June 2007 and, April 2008)

BENCH NOTES REVISION: See CC 2100 [Driving Under the Influence Causing Injury (Veh.Code, 23153(a))], above.

CC 2111 Driving With 0.08 Percent Blood Alcohol (VC 23152(b)) (New January 2006; Revised August 2006, June 2007 and April 2008)

BENCH NOTES REVISION: See CC 2100 [Driving Under the Influence Causing Injury (Veh.Code, 23153(a))], above.

CC 2220 Driving With Suspended or Revoked Driving Privilege (VC 13106, 14601, 14601.1, 14601.2, 14601.5.) (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Change in title from “Driving With Suspended or Revoked License.” Changed all references in instruction from “driver’s license” to “driving privilege.”

BENCH NOTES REVISION: See CC 2100 [Driving Under the Influence Causing Injury (VC 23153(a))], above. Also changed references in note from “driver’s license” to “driving privilege.”

WEAPONS

CC 2500 Illegal Possession, etc., of Weapon (PC 12020(a)(1) & (2)) (New January 2006; Revised August 2006 and April 2008)

INSTRUCTION REVISION: Modified Element 3B <Alternative 3B—object designed solely for use as weapon> as follows [added language is underlined; deleted language is stricken]:

[3. The defendant knew that the object (was (a/an) __________<insert type characteristics of weapon from PC 12020(a), e.g., “cane sword,” short-barreled shotgun>/could “unusually short shotgun, penknife containing stabbing instrument”>/could be used ________ <insert descriptionof weapon, e.g., “as astabbing weapon,” or “for purposes ofoffense or defense”>).]

Added before 5th paragraph:

[A ________<insert type of weapon specified in element 3B> is ________<insert defining characteristics of weapon>.

COMMENTARY REVISION: Deleted 5th paragraph re: People v. Rubalcava (2000) 23 C4th 322, 331–332 [some cases held that the prosecution did not have to prove that the defendant knew that the object was a weapon of a prohibited class].

CRIMES AGAINST GOVERNMENT

CC 2701 Violation of Court Order: Protective Order or Stay Away (PC 166(c)(1), 273.6) (New January 2006; Revised June 2007 and April 2008)

INSTRUCTION REVISION: Modified 5th Element as follows [added language is underlined; deleted language is stricken]:

AND

5. The defendant willfully (willfully/intentionally) violated the court order.

TAX CRIMES

CC 2840 Evidence of Uncharged Tax Offense: Failed to File Previous Returns (New January 2006; Revised April 2008)

INSTRUCTION REVISION: Modified <B. Accident or Mistake> as follows [added language is underlined; deleted language is stricken]:

[The defendant’s alleged actions were not the result of mistake or accident.]

Modified 6th paragraph, 3rd sentence as follows:

The People must still prove each element of ________<insert charged offense> (the/each) (charge/ [and] allegation) beyond a reasonable doubt.

FORECITE COMMENTARY: See FORECITE Commentary to CALCRIM 375, above.

DEFENSES AND INSANITY

CC 3402 Duress or Threats (New January 2006; Revised June 2007 and April 2008)

BENCH NOTES REVISION: Modified paragraph 1 & 2 of Bench Notes as follows [added language is underlined; deleted language is stricken]:

The court has a sua sponte duty to must instruct on a defense when the defendant is relying on this defense, or requests it and there is substantial evidence supporting the defense. The court has a sua sponte duty to instruct on a defense if there is substantial evidence supporting the defense and it is not it and either the defendant is relying on it or it is not inconsistent with the defendant’s theory of the case. When the court concludes that the defense is supported by substantial evidence and is inconsistent with the defendant’s theory of the case. (See